Action No.

130163405Q1
E-File Name: CVQ19STEPHAND
Appeal No. ____________

IN THE COURT OF QUEEN'S BENCH OF ALBERTA

JUDICIAL CENTRE OF CALGARY

HER MAJESTY THE QUEEN

v.

DAVID ROBERT STEPHAN

COLLET DAWN STEPHAN
Accused

__________________________________________________________________________

PROCEEDINGS
__________________________________________________________________________

Calgary, Alberta
January 18, 2019

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TABLE OF CONTENTS

Description Page

January 18, 2019 Morning Session 1

Discussion 1
Submissions by the Accused Mr. Stephan (Costs) 3
Submissions by Ms. Kristensen (Costs) 45
Decision 53
Certificate of Record 64
Certificate of Transcript 65

January 18, 2019 Afternoon Session 66

Discussion 66
Submissions by Ms. Kristensen (Strike Items in Charter Notice) 67
Decision (Strike Items in Charter Notice) 75
Discussion 77
Certificate of Record 87
Certificate of Transcript 88
 1

1 Proceedings taken in the Court of Queen's Bench of Alberta, Calgary Courts Centre, Calgary,
2 Alberta
3 __________________________________________________________________________
4
5 January 18, 2019 Morning Session
6
7 The Honourable Associate Chief Court of Queen's Bench
8 Justice Rooke of Alberta
9
10 B.C. Kristensen For the Crown
11 A.G.P. Shewchuk, QC For the Attorney General
12 (No Counsel) For the Accused D. Stephan
13 (No Counsel) For the Accused C. Stephan (by telephone)
14 E. Kay Court Clerk
15 __________________________________________________________________________
16
17 Discussion
18
19 THE COURT CLERK: Order in court, all rise.
20
21 THE COURT: Please be seated.
22
23 MR. SHEWCHUK: Good morning, My Lord.
24
25 MS. KRISTENSEN: Good morning, Sir.
26
27 THE COURT: We are here this morning in the criminal
28 proceeding of R. v. Stephan and Stephan, which is a retrial of a matter that will return after
29 today’s hearing to Lethbridge where it originated. There have been a couple of pretrial
30 conferences in this matter but this is a criminal case. And this is a case management in the
31 context of that criminal case and, therefore, counsel must be gowned and we’ve been
32 delayed now for 20 minutes because counsel wasn’t. We will sit today due to unusual
33 circumstances caused by the death of a former member of our court until approximately
34 1:00 and then we -- I propose to take a break sometime in the morning, mid-morning, and
35 then we’ll commence again at about 3:15 and continue until 4:30, and perhaps later if
36 necessary. We normally sit five hours in a day and we will make up that time in that process
37 and with regret. This was an event that happened after we had set the hearing and it’s
38 necessary for the Court to attend.
39
40 We are here today specifically and exclusively to hear the application of Mr. and Mrs.
41 Stephan that was filed on December the 4th, 2018, and was the subject of a pretrial
 2

1 conference with Justice Hughes, who subsequently got appointed to the Court of Appeal
2 on or about December 6th, and myself on or about December 12th. So that is the purpose
3 of the hearing today. We may also deal with other matters. I see that Mr. Stephan is present.
4 I understand that with the agreement of Ms. Stephan, the co-accused, and with the
5 agreement of the Crown that she is listening by telephone and if she has submissions she
6 can make them by telephone.
7
8 Are there any other preliminary matters before we proceed to hear Mr. Stephan and Ms.
9 Stephan’s application. I take it implicit, Mr. Stephan, that you are appearing on behalf of
10 both yourself and your spouse to make this application.
11
12 THE ACCUSED D. STEPHAN: Yes, for the most part that is correct, Sir. And I
13 would also like to ask the Court if I could have in attendance beside me a MacKenzie friend
14 to assist me with the large file before us in flipping through stuff if --
15
16 THE COURT: And who is that MacKenzie friend?
17
18 THE ACCUSED D. STEPHAN: Sorry, my apologies, Sir. That MacKenzie friend
19 would be Bradford Stephan.
20
21 THE COURT: Okay. That’s permitted.
22
23 THE ACCUSED D. STEPHAN: Thank you.
24
25 THE COURT: So, Mr. Stephan, I have of course prior to this
26 date reviewed your application, your application material, the affidavits that have been
27 filed, and the detailed argument that you filed on January 7th, and there has been other
28 submissions along the way. As far as I know, I have read everything, except all of the
29 attachments and exhibits I have not read. And so I’m familiar with the nature of your
30 application and the nature of your arguments, and the question I have now is is there further
31 oral submissions that you wish to make?
32
33 THE ACCUSED D. STEPHAN: Yes, Sir, there is. And based on time constraints
34 with having to get the constitutional notices ready and all that, they are somewhat deficient.
35 So the good news is that my strong point typically is not brevity but today it will be fairly
36 short I anticipate.
37
38 THE COURT: Well you know and I know and Crown knows
39 that we have reserved two weeks in February some long time ago, last July, for voir dires
40 with respect to this matter relevant to the evidence that is intended to be brought before the
41 Court in any trial and we will deal with those matters at this time. All I intend to deal with
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1 today is the application of December 4th.

2
3 THE ACCUSED D. STEPHAN: That is correct, Sir, yes.
4
5 THE COURT: Okay.
6
7 THE ACCUSED D. STEPHAN: I totally do.
8
9 THE COURT: So I don’t want to hear you repeat the arguments
10 you made in your written material. You -- but if you want to highlight those, I will hear
11 you in that regard, and then I will hear the Crown thereafter. Are there any other
12 preliminary matters before we proceed to hear you further?
13
14 MR. SHEWCHUK: No, Sir.
15
16 MS. KRISTENSEN: Not from the Crown.
17
18 THE COURT: Okay. So, Mr. Stephan, I’ll hear you.
19
20 Submissions by the Accused Mr. Stephan (Costs)
21
22 THE ACCUSED D. STEPHAN: Thank you very much, Sir. And there is just one
23 point that I want to put forward that I -- my assumption, or my ignorance, would say that I
24 think I would need the approval of the Crown on this as well. You will find in my exhibits
25 from December 13th that there are two affidavits in there from Angela Kaback (phonetic)
26 and I was not aware that by putting them into the exhibits at the time that I did so that --
27 my understanding is that they won’t be accepted for the truth of their content. And if that
28 be the case, I would like to put forward that perhaps they could be accepted for the truth of
29 their content, and the reason why we had done that is we were concerned about third-party
30 affidavits being accepted.
31
32 THE COURT: And those affidavits, again, give me the names?
33
34 THE ACCUSED D. STEPHAN: It’s -- they’re two separate affidavits, Exhibit A
35 and B is what they are, or 1 and 2 depending if it’s a number or letter system. And --
36
37 THE COURT: Exhibit A and B to what?
38
39 THE ACCUSED D. STEPHAN: For December 13th affidavit of David Stettler
40 (phonetic).
41
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1 THE COURT: Okay, just give me a minute. Is this your

2 supplementary affidavit?
3
4 THE ACCUSED D. STEPHAN: That is correct, yes. And it is A and B I see here,
5 Sir. And had we not known -- or had we known, sorry, that they wouldn’t be accepted for
6 the truth of their contents by putting them into exhibits, we would not have done so. So my
7 apologies.
8
9 THE COURT: Well, just give me a moment.
10
11 THE ACCUSED D. STEPHAN: Yeah.
12
13 THE COURT: Okay. I’ve refreshed my memory. I’ve looked at
14 the quickly but not in detail. There’s a problem with all of the affidavits filed in this case
15 because some of the information is not admissible. Mr. -- for example, Mr. Bradford
16 Stephan proposes to give opinion evidence and he’s not allowed to do that in an affidavit,
17 he’s not an expert. And there’s hearsay. There’s lots of things in these affidavits that aren’t
18 admissible in the true sense, but I’ll hear from the Crown on this. Part of the problem that
19 we’re going to face throughout the day is I’m not here to investigate past events, full stop.
20 I am here as case management justice to deal with evidence that would be admissible in a
21 new trial and to hear voir dire applications, Charter applications, disclosure applications,
22 with respect to the new trial. I’m not here to investigate or rule on what happened in the
23 last trial.
24
25 So we’re going to face that on everything we get to. And so when I look at these two
26 affidavits, they’re talking about the stress caused to the family in the context of the past
27 trial and various aspects of it. I’m not investigating that. So from my perspective, subject
28 to hearing from the Crown, whether they go in or don’t go in is not going to determine
29 anything today because I’m not making any rulings on the past trial. And that is going to
30 become more and more clear as we go. So from my perspective they can go in for whatever
31 value they have, but not necessarily as evidence of the truth of their contents. Although,
32 some of them -- some of the comments might be truthful, the question is how relevant are
33 they to our proceeding today. So whether they’re filed as separate documents or attached
34 as exhibits to your document, to the extent that they’re sworn before a commissioner of
35 oaths the Court has no objection to them going in for whatever relevance, weight, and
36 admissibility they might have. Does the Crown have any submissions on that?
37
38 MS. KRISTENSEN: No, Sir, admissibility is not an issue. As the
39 Court indicated, I don’t believe they’re relevant in this particular application in any event.
40
41 THE COURT: Yes. So you don’t need to do anything further.
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1 They’re here and I’ve now reviewed them again quickly to see the nature of the content.
2
3 THE ACCUSED D. STEPHAN: Okay. Thank you very much, Sir. Okay. One
4 more point of clarification before I go into the oral submissions. I just want to clarify one
5 point, point 11 of Ms. Kristensen’s brief stating, “The accused’s application for punitive
6 damages is also a civil application.” And I ask the Court to forgive my ignorance. What we
7 were seeking is simply deterrence by way of costs on that matter. So if that is of any
8 assistance, I want to put that forward and then move forward with the oral submissions.
9
10 THE COURT: Well, I’ve heard you. Go ahead.
11
12 THE ACCUSED D. STEPHAN: Thank you very much. Okay.
13
14 THE COURT: And use the lectern or you can use the table, but
15 you need to speak in a microphone so that you can be heard and recorded.
16
17 THE ACCUSED D. STEPHAN: Okay. So if -- if I’m moving back and forth am I
18 going to be heard appropriately?
19
20 THE COURT: Well, I hope so. Madam clerk will monitor that
21 and make sure that it’s being recorded. If there’s a problem she’ll let us know.
22
23 THE ACCUSED D. STEPHAN: Thank you. Okay. So I’ll begin by giving some
24 context here by going to point 20 of Mr. Kristensen’s brief. The accused --
25
26 THE COURT: Now, sorry. I’m going to end up interrupting you
27 quite a bit today because when you say 120 I need to know the date that it was filed so I
28 can track this because we’ve got various applications and affidavits and materials. So if
29 you’re referring to a brief tell me the date that it was filed and then I can get right to it.
30
31 THE ACCUSED D. STEPHAN: Perfect. My apologies, Sir. January 14th brief of
32 Ms. Kristensen. The Crown submissions on costs applications.
33
34 THE COURT: Okay. And you’re going to -- that was filed
35 January 14th and you’re going to what point? Paragraph --
36
37 THE ACCUSED D. STEPHAN: Actually, yeah, we’re going to start with 15 just
38 as a -- to create context for the entirety of this.
39
40 THE COURT: Paragraph 15?
41
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1 THE ACCUSED D. STEPHAN: Paragraph -- yeah, point 15 I guess, paragraph

2 15, yes, Sir.
3
4 THE COURT: Yes.
5
6 THE ACCUSED D. STEPHAN: And so she states in there, “Costs are only
7 awarded against the Crown in exceptionable circumstances.” Now, I want to give further
8 clarification as well so that there -- there’s an understanding as to why I’m going a certain
9 direction here. If we go to the Attorney General’s submissions from Mr. Shewchuk, which
10 was filed as well on the 14th.
11
12 THE COURT: Well, there’s no application for state funded
13 counsel so I’m not sure that his submissions are relevant. I take it that they were filed in
14 anticipation that there might be such an application, but you’ve made it very clear in various
15 places that you’re not making an application for state funded counsel, referred to in law as
16 a Rowbotham application, and you’re not making an application for a Fisher order, which
17 would be to enhance the entitlement to funding.
18
19 THE ACCUSED D. STEPHAN: Yes, that is correct, Sir. Thank you. And so I
20 want to pull out an element of that just to take context as to why there’ll be a slight
21 reflection on what’s taken place in the past to show where we’re moving forward or how
22 we’re moving forward. And so if we go to point 22 of the Attorney General’s submissions
23 there --
24
25 THE COURT: Now are you talking Mr. Shewchuk’s
26 submissions or Ms. Kristensen’s submissions?
27
28 THE ACCUSED D. STEPHAN: Mr. Shewchuk’s.
29
30 THE COURT: Point 22 on his brief?
31
32 THE ACCUSED D. STEPHAN: Yeah.
33
34 THE COURT: I have it.
35
36 THE ACCUSED D. STEPHAN: (as read)
37
38 It is submitted that the law is clear and binding that this court, except
39 in the rarest of cases, has no jurisdiction to dictate which counsel
40 should be paid by Legal Aid or at what rate they should be paid.
41
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1 Now, though we are not seeking Legal Aid, the point that’s being made there is that -- my
2 understanding is for the courts to be able to consider additional costs, that we would have
3 to identify this case as unique, as rare, and quite exceptional. And that is what my brief
4 overview of my oral submissions is intended to do.
5
6 THE COURT: Well, you’ve got no future application, as I said
7 and you’ve just acknowledged it again, for a Rowbotham or Fisher. So I’m not going to be
8 getting into those arguments. Your application for costs for past misdeeds as alleged is not
9 matters that are before me. Those are civil matters and if you want to -- and let’s just get it
10 on the table right now. Having read your brief it’s clear to me that if you want to pursue
11 those matters you can sue the Attorney General, you can sue the hospital, you can sue the
12 ambulance, you can sue everybody except the judge -- and I’ll tell you why in a minute --
13 and you can prove your allegations, if you can, on the proper standard and at the end of
14 that time you may or may not be entitled to some remedy. But I’m not here dealing with
15 the new trial to deal with that matter. So that’s the problem throughout with your
16 application. You’re in the wrong procedure and at the wrong place.
17
18 THE ACCUSED D. STEPHAN: And so our intent to argue R. v. Curragh wherein
19 costs were awarded past as well as for present proceedings, that is what we intend to
20 establish.
21
22 THE COURT: Well, there’s some grey area, I may let you
23 pursue that. But you’re going to have to establish that it relates to the future case, not to the
24 past case. And Curragh is a very difficult -- a different case than we’ve got before us. And
25 it deals with a court’s finding of misconduct by the judge. In this case, the basic rule is you
26 can’t sue a judge because they’re immune from suit for things that they do in the course of
27 their duties. To the extent of that Justice Jerke made an error in court, which the Court of
28 Appeal and dissent found and the Supreme Court of Canada agreed with that error and, of
29 course, of him exercising his jurisdiction and resulted in a remedy to you of a new trial.
30 And so all of the evidence from the last trial is not evidence in the next trial. And that’s
31 what we’re going to in February, is talk about those things that relate to admissibility or
32 Charter challenges for the new trial.
33
34 Now, there may be some overlap there. I’ll hear you on that case, But there’s no sense in
35 me delaying telling you what my view is of most of your application, is it’s in the wrong
36 place and the wrong court and the wrong procedure. It may be the right court in due course
37 but that’s after a statement of claim.
38
39 THE ACCUSED D. STEPHAN: Okay, thank you very much for the clarification
40 and I hope to be able to address the courts appropriately based on my understanding of the
41 elements necessary to be established for Curragh to be able to create that similarity there
 8

1 to show that that’s kind of what we’re going for.

2
3 THE COURT: And I’m not saying Curragh is relevant. I’m
4 saying there’s something you may want to argue there and I’ll hear you and I’ll hear the
5 Crown on it.
6
7 THE ACCUSED D. STEPHAN: Perfect. Thank you so much, Sir. And so if we go
8 to point 20 of Ms. Kristensen’s brief that was filed on the 14th.
9
10 THE COURT: I have it.
11
12 THE ACCUSED D. STEPHAN: (as read)
13
14 The accused appeared to allege misconduct by the RCMP, by the
15 medical examiner’s office, by medical professionals, by those
16 responsible for maintaining and disclosing health records, and by
17 witnesses called by the Crown. While these individuals may be part
18 of the state, they are not part of the Crown. As such, even if
19 misconduct was made out on the part of any of these actors, it would
20 not amount to misconduct of the Crown capable of grounding a
21 Charter application for costs.
22
23 And it’s my intent to identify joinder between the Crown and the RCMP, as well as the
24 Crown and some of the medical professionals that we allege engaged in misconduct. And
25 by so doing, by having joinder, that they are part and parcel to the misconduct as well.
26
27 THE COURT: Well, again, that’s not my role and that’s not why
28 we’re here. And the application that you’ve made will require a civil trial. We keep coming
29 back to the same point. In Curragh there was a finding by the court. There has been no
30 finding by the court to support any of your allegations. And that requires a judicial
31 determination and that’s not the role of this Court in this proceeding.
32
33 THE ACCUSED D. STEPHAN: And so it is not within the jurisdiction of this
34 Court to be able to examine the evidence before it today and determine whether these are
35 factors that would substantiate paying out past costs and identifying the complexity of the
36 upcoming case based on what the past case --
37
38 THE COURT: Exactly.
39
40 THE ACCUSED D. STEPHAN: -- showed.
41
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1 THE COURT: Exactly. You know, we start with a fresh slate for
2 the new trial and you can -- with very few exceptions, and there may be the odd one, I
3 haven’t thought of one at the moment -- but the Crown has got to prove its case beyond a
4 reasonable doubt, it’s got to bring in admissible evidence. You’re entitled to challenge that
5 evidence in cross-examination. You’re entitled to bring Charter applications with respect
6 to that evidence. Let me give you an example. You say in your material that in effect the
7 statement that the Crown got from you, the police got from you, was coerced and it’s in
8 breach of the Charter. Okay. Well, we’ll have a Charter application to determine, if the
9 Crown wants to bring in that statement either as evidence against you or as a basis for
10 cross-examining you, they’ll have to prove in a voir dire that it’s admissible. So we start at
11 ground zero. It’s like it’s the first day of a proceeding.
12
13 THE ACCUSED D. STEPHAN: And what if the past issues that plagued the case
14 prior were still relevant and alive today?
15
16 THE COURT: Well, they may be relevant. And you’ve found
17 out -- it’s pretty evidence to me from your so-called investigation by whoever did it that
18 you found out information that you say was not disclosed and demonstrated that there were
19 other causes to Ezekiel’s death that weren’t before the previous court. So you now know
20 about that. You’re entitled to full disclosure. To the extent that you haven’t got disclosure,
21 that would be something that we would deal with in February and you can bring that
22 forward. And bring that forward and the trier of fact, in that case it was a jury, in this case
23 it’s judge alone, will have to determine whether that means that the Crown has not proved
24 its case beyond a reasonable doubt or that that evidence creates it.
25
26 THE ACCUSED D. STEPHAN: Okay. My apologies, I’m trying to -- I’m going
27 to try to parse through this and figure out without offending the courts, as I’m not -- it’s
28 not my intent to be dismissive of anything --
29
30 THE COURT: No, no.
31
32 THE ACCUSED D. STEPHAN: -- that was said. It’s just that I’m lacking in
33 understanding. And so as I go through this --
34
35 THE COURT: Well, I tried to point this out to you twice at least
36 in letters -- in response to letters that you wrote to the court. And I think I pointed it out, I
37 didn’t go back to the transcript, when we met on December the 12th I think it was. But, go
38 ahead. And I’m going to interject though and tell you where I think there’s an issue so that
39 you’re not misled.
40
41 THE ACCUSED D. STEPHAN: Okay, perfect. Thank you. So I’m going to begin
 10

1 by referencing R. v. McNeil, which would be found in my brief filed January 7th, appendix
2 A, on page 123, paragraph 2.
3
4 THE COURT: Well, you mention -- you mentioned at the close
5 of your argument on page 41 R. v. McNeil, and then you attach.
6
7 THE ACCUSED D. STEPHAN: So, I apologize. Am I good to read this?
8
9 THE COURT: Go ahead. I’m just saying it’s -- you make your
10 argument at page 41 and you’ve attached the case so …
11
12 THE ACCUSED D. STEPHAN: Okay. I guess before going into it I should
13 probably clarify with the Court in regard to establishing the issues surrounding this
14 situation that lead the accused to seek for costs based on wrongdoing from the past trial. Is
15 it of any value to the courts that I establish joinder between the RCMP and their failure to
16 obtain disclosure and their relationship with the Crown?
17
18 THE COURT: Well, it may be relevant to a civil suit and may
19 be something that’s arguable there as to why the Crown would be liable for police
20 wrongdoing if police wrongdoing is proved. It may well be relevant there. It’s not relevant
21 here as far as I can determine.
22
23 THE ACCUSED D. STEPHAN: Okay.
24
25 THE COURT: You’ll have to establish that there’s some basis
26 for it. Because I repeat, I’m not going back and ruling on what happened in the past. I’m
27 here to determine that we have a proper record based on law going forward for the next
28 trial.
29
30 THE ACCUSED D. STEPHAN: Okay. I guess for the sake of simplicity based on
31 -- I don’t want to make things complicated and take more time before the courts. I’m
32 wondering if maybe -- if I just go through my brief oral submissions and then at the end, if
33 it’s -- it can be identified as to what is relevant what’s not relevant from the courts, would
34 that be appropriate?
35
36 THE COURT: You have an opportunity to make your
37 arguments and I just wanted to give you notice that -- where my mind is. I don’t like people
38 making arguments in front of me and me sitting here like a rock and not giving you any
39 feedback on where you’re going. So you have all of today until 4:30 to make your
40 arguments and we’ll see where it goes. So I’m not saying I won’t interrupt you on occasion
41 but I think you’ve got the drift of the concerns that I’ve expressed.
 11

1
2 THE ACCUSED D. STEPHAN: Yes, thank you, Sir. And I’m not in a position at
3 this point to be able to internalize those concerns and be able to dissect my oral submissions
4 in a way that I think -- yeah, I don’t think it’d be appropriate for me to attempt to do that
5 and probably take more time of the courts as I’m respectful of the time constraints that we
6 do have today. So I’ll just try to go through this as quickly as possible and, as I would
7 anticipate based on the communication that we’ve had, that you’re probably going to find
8 much of this -- or some of it at least irrelevant. But --
9
10 THE COURT: I’m not saying it’s irrelevant in a broad sense but
11 it’s not what I’m here to do.
12
13 THE ACCUSED D. STEPHAN: Okay, thank you, Sir. And thank you for the
14 clarification and the patience. Okay. So in my arguments brief filed January 7th, appendix
15 A, page 123, paragraph 2, we read from the case summary of R. v. McNeil, starting at the
16 fourth line in the paragraph: (as read)
17
18 A question then arises as to whether the Crown for disclosures
19 purposes encompasses other state authorities. While the roles of the
20 Crown and the police are separate and distinct, the police have a duty
21 to participate in the disclosure process. The necessary corollary to the
22 Crown’s disclosure duty under Stinchcombe is the obligation of police
23 to disclose to the Crown all material pertaining to its investigation of
24 the accused. For the purposes of fulfilling this corollary obligation,
25 the investigating police force, although distinct and independent from
26 the Crown at law, is not a third party. Rather, it acts on the same first
27 party footing as the Crown.
28
29 Records relating to findings of serious misconduct by police officers
30 involved in the investigation against the accused properly fall in the
31 scope of the first party disclosure package due to the Crown from the
32 police where the police misconduct is either related to the
33 investigation or the finding of misconduct recently impact on the case
34 against the accused.
35
36 And so it is the defence’s position that R. v. McNeil indicates that where the misconduct of
37 the RCMP could reasonably impact on the case against the accused, there is a connection
38 in the disclosure responsibilities between them and the Crown. And the fact that the Crown
39 and the RCMP fall under the Alberta Justice, we feel that they do in fact have significant
40 joinder.
41
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1 THE COURT: Well, in that case, as you should be aware from

2 reviewing it, there was alleged or proven misconduct by police officers involved in the case
3 -- involved in other cases, I think, without me going back and looking at it. And so if you’ve
4 got Constable Bloggs (phonetic) is involved in your case and Constable Bloggs has been
5 disciplined in the past for past misconduct, then McNeil says that you have to provide --
6 you, the Crown -- has to provide disclosure with respect to Constable Blogg’s record. And
7 that’s where conduct has been -- misconduct has been found. Here no misconduct has been
8 found. You allege misconduct but I’m not aware of any past misconduct prior to this case
9 having been found of the officers in question. If there was by one of the officers, then that
10 needed to be disclosed as part of the disclosure to you. Oh, by the way, Constable Bloggs
11 was found to be guilty of misconduct in this previous case and you need to know about that
12 relevant to your defence in this case.
13
14 So that’s -- that’s how I’m understanding McNeil. Those are cases where conduct has --
15 misconduct has been found. There’s no misconduct found in this case. You allege it. You
16 may prove it at some point in time if you want to pursue a statement of claim. But your
17 allegations don’t make it so …
18
19 THE ACCUSED D. STEPHAN: Okay. Okay, I’m just going to breeze through
20 this then. Because we -- yeah, we do allege misconduct, significant misconduct that
21 ultimately impacted our fair trial rights. And so we feel that, you know, the RCMP being -
22 - or having joinder with the Crown, and that’s a large point that we are using McNeil for,
23 is that the RCMP then create a joinder with Alberta Health Services. And if we turn to the
24 affidavit of myself, David Stephan, filed on December 4th, 2018, and we take a look at
25 Exhibits 3 and 4, we see some very interesting things in regard to these health requests that
26 were made, And so the first one that you’ll see in Exhibit 3 is the cover page that we
27 received after our conviction in 2016 when we decided to look --
28
29 THE COURT: Just let me find -- let me find it. Just a minute.
30 This is the letter to you of July 11, 2016? Exhibit 3?
31
32 THE ACCUSED D. STEPHAN: That is correct, Sir.
33
34 THE COURT: Yes, okay. Go ahead.
35
36 THE ACCUSED D. STEPHAN: Thank you. And so what you’ll find in there
37 when you go down to the body: (as read)
38
39 This letter is in response to request date of June 20th, 2016. Attached
40 are copies of the following documents available at the time of
41 processing on the above named patient.
 13

1
2 That being my son, Ezekiel Stephan. And it says: (as read)
3
4 Health records to present date as maintained by the Health
5 Information Management Department at the Alberta Children’s
6 Hospital: Total number of pages copies and released 623 pages.
7
8 And that was in regard to a request for all the medical files, 623 pages. And yet if we flip
9 over to Exhibit 4 you will find a very similar cover page excepting that there is a list of
10 specific documents that are being requested rather than just all medical records. And what
11 you’ll find in there is an: (as read)
12
13 Enrolment Sheet, Child Abuse Service Physician Report, Child
14 Abuse Service Intake Record, Child Abuse Case Conference Report,
15 History and Physical Examination, Consultation Reports, In-patient
16 Progress Records, Transfer Information to Alberta Children’s
17 Hospital, Diagnostic Imaging Reports, and Laboratory Reports.
18
19 When you take a look at the total number of pages that were released to the RCMP through
20 these specific records that were requested, you will see not 623 pages like our request
21 brought up, but rather 450 pages.
22
23 Now, it’s interesting to note that the pages or the documents in those 450 pages that were
24 submitted to the RCMP, that it was missing a lot of the actual medical records that would
25 have communicated what Ezekiel’s actual condition was and that it actually served to
26 favour the Crown’s narrative. Conversely, the documents that we received, the missing
27 pages, well over a hundred pages, painted a fairly different picture that stood in contrast of
28 the medical examiner’s autopsy report.
29
30 Now, further to that --
31
32 THE COURT: So, now, are you saying that there were more
33 pages available through Alberta Health Services than the 623 that were apparently released
34 to you as indicated in Exhibit 3?
35
36 THE ACCUSED D. STEPHAN: That there’s more?
37
38 THE COURT: Yes.
39
40 THE ACCUSED D. STEPHAN: Oh, yes, there is more that we have not yet been
41 able to get our hands on.
 14

1
2 THE COURT: Okay. Well --
3
4 THE ACCUSED D. STEPHAN: But that is -- that is what was given to us by
5 simply putting in a request --
6
7 THE COURT: Yes.
8
9 THE ACCUSED D. STEPHAN: -- to Alberta Children’s Hospital, all records.
10
11 THE COURT: Yes.
12
13 THE ACCUSED D. STEPHAN: And so it’s peculiar that the RCMP would be
14 making a request, not for all records but somehow they would be learning the specific
15 names of each report and requesting it by name. And it’s not reasonable to think that an
16 RCMP request of these documents would have known the specific names of the documents
17 to ask for without assistance from somebody from the medical system. And so it is our
18 position at that point that the RCMP, who resides in joinder with the Crown, at this point
19 creates joinder with Alberta Health Services.
20
21 THE COURT: So to be clear, and this is where we’re going to
22 be maybe in February, let me give you a primer on the law. You’re quite right about one
23 of the comments you made about McNeil, information in the hands of the RCMP relevant
24 to the charges in question become information of the Crown and to be produced. But to the
25 extent that there’s records out there, in this case Alberta Health Services -- and I’ll hear the
26 Crown on it if I say anything wrong, if they tell me I’m wrong on this -- but they’re what
27 we call third-party records. So let me give you an example. Let’s assume there’s
28 counselling records -- not in this case but in another case involving let’s say an assault on
29 a child. There’s counselling records held by counsellors which could be Alberta Health
30 Services or somebody else. You need to make an application for third-party records. It’s
31 called an O’Connor / Mills Application after the name of two cases. And so to the extent
32 that there’s material that you believe is out there that you haven’t received at any time
33 during this whole process, then that would be something that you would want to make and
34 -- and amend any application you have to obtain.
35
36 THE ACCUSED D. STEPHAN: Thank you for that information, Sir. There is
37 indeed evidence that is either still producible and not being supplied.
38
39 THE COURT: But that would be a third-party application
40 because there’s the Crown -- the RCMP is entitled to -- or required to provide information
41 to the Crown and all of that is Crown disclosure to prosecutors.
 15

1
2 THE ACCUSED D. STEPHAN: Okay.
3
4 THE COURT: Disclosure. But there’s some agencies out there
5 that aren’t part of that process and, therefore, third parties. So if you want to go to McGrath
6 Ambulance Centre, that might be covered by Alberta Health Services but it may not be. Or
7 records from the hospital. So we have to -- and the Crown will -- the Crown prosecutor
8 will tell us whether they believe that it’s a third-party record claim or whether it’s part of
9 their responsibility. If it’s their responsibility, they’ve got a duty to provide it. If it’s not
10 their responsibility and they don’t have it, then they can say well you can get that from
11 Alberta Health Services and you make an application and tell me what’s necessary and if
12 it’s relevant material, you’ll get the order requiring it to be produced.
13
14 THE ACCUSED D. STEPHAN: Perfect. And in regard to statements being taken
15 from witnesses --
16
17 THE COURT: You’re entitled to statements being taken from
18 witnesses. That’s usually part of the Crown disclosure.
19
20 THE ACCUSED D. STEPHAN: Okay.
21
22 THE COURT: So the RCMP interview Dr. ‘X’ and that’s a
23 statement that you’re entitled to. It’ may be that Dr. ‘X’ is who told them about these
24 particular reports being quite relevant. I don’t know.
25
26 THE ACCUSED D. STEPHAN: Okay. And if statements weren’t taken from
27 particular key witnesses, who’s duty is that to --
28
29 THE COURT: Well, you’re entitled to disclosure of what was
30 obtained.
31
32 THE ACCUSED D. STEPHAN: Okay.
33
34 THE COURT: You’re not entitled necessarily to a further
35 investigation.
36
37 THE ACCUSED D. STEPHAN: Okay.
38
39 THE COURT: But it may be that there is an oral statement so --
40 and a police officer would say, I talked to Dr. ‘X’ and Dr. ‘X’ told me A, B, and C, and D.
41 There may or may not be a written record of that. If there is, the Crown has to provide it.
 16

1
2 THE ACCUSED D. STEPHAN: Perfect. Thank you very much.
3
4 THE COURT: Sometimes it’s just in the police officer’s
5 notebook. There may be a reference. You would get the police officer’s notebook
6 presumably and it might say such-and-such a date talked to Dr. ‘X’. May have notes of
7 what he said. You’re entitled to that. But if there was no written statement given or any
8 audio recorded statement, then you don’t have a right to go and have them recreate
9 something that didn’t exist.
10
11 THE ACCUSED D. STEPHAN: Thank you, Sir. So just to finish off that point
12 about the disclosure there -- or not the disclosure but the request of medical files. Upon
13 examination, taken a look at the content that the RCMP requested from Alberta Children’s
14 Hospital, there’s an interesting pattern that comes forward. (a) being the majority of the
15 documentation requested are centred on people’s opinions with limited files of medical
16 evidence and (b) the pages of missing information that were obtained after the trial contain
17 a large amount of medical records that evidence Ezekiel’s actual condition
18 (INDISCERNIBLE) contrary to the medical examiner’s findings and Crown narrative. It
19 is our position that the RCMP worked with medical staff to exclude exculpatory evidence
20 and, as such, created joinder with Alberta Health Services.
21
22 Now, to complete this circle, it is our position that the Crown through duration of the trial
23 actually created joinder directly with the medical staff. If you refer to page 1570 of the trial
24 transcripts --
25
26 THE COURT: I don’t have that.
27
28 THE ACCUSED D. STEPHAN: Okay. Would you like me to read them off, Sir,
29 or supply them to you?
30
31 THE COURT: Well, tell me your point but I don’t have access
32 to the transcripts. They may be somewhere in some file on -- certainly would be in the
33 Court of Appeal. Undoubtedly, they’re in the Supreme Court. They might have been filed.
34 But I don’t have them.
35
36 THE ACCUSED D. STEPHAN: Okay.
37
38 THE COURT: I have not reviewed them. So if you want to --
39
40 THE ACCUSED D. STEPHAN: Okay.
41
 17

1 THE COURT: -- give me page references and tell me who the

2 witness was and tell me what it said, then we’ll see whether I need to go further.
3
4 THE ACCUSED D. STEPHAN: Okay. That I will do, thank you, Sir. I believe we
5 attempted to put those in included with an affidavit, about a whole tree’s worth of paper,
6 but that’s okay. So I will -- I’ll refer to it specifically and if there’s any objections to the
7 content that I have written down by the Crown, I fully anticipate an objection.
8
9 What we see here is dialogue between --
10
11 THE COURT: Give me the page reference though, I’m sorry?
12
13 THE ACCUSED D. STEPHAN: Yeah, page 1570.
14
15 THE COURT: And this is -- who is the witness and who is the
16 questioner?
17
18 THE ACCUSED D. STEPHAN: The questioner is Crown prosecutor Clayton
19 Giles and the witness is Dr. Alexander Cunningham.
20
21 THE COURT: Okay.
22
23 THE ACCUSED D. STEPHAN: And so 1570, lines 12 through 18, the question
24 is: (as read)
25
26 Q So I’m going to guess that you could walk 360 degrees around
27 whatever table, gurney, bed, that this young man was on?
28 A Yeah. So at that point the patient’s been transferred to a
29 stretcher. The stretcher is mobile and as such we have access
30 around the patient.
31 Q Okay. And, you know, I don’t want to get into how much
32 potassium he had or anything like that. Just give me a really
33 brief picture of how poorly or well that young man was doing?
34
35 Now, it’s interesting to note -- we’re done with that quote there -- it’s very interesting to
36 note that upon a search of the 35 -- approximately 3500 pages of trial transcripts, the word
37 potassium shows up twice; once when Dr. De Melo is conveying a list of what you’d find
38 in a (INDISCERNIBLE) drink. The second is simply when Crown prosecutor Clayton
39 Giles directs Dr. Alexander Cunningham away from speaking about potassium. Now at the
40 time it didn’t appear relevant at all. It was one of those needles in a haystack. But it’s
41 interesting to note that upon further investigation and looking over all the medical files that
 18

1 Dr. Cunningham was actually the medical professional who treated Ezekiel for elevated
2 potassium levels. Elevated potassium levels that could have created a lot of, if not all, of
3 the symptoms that he arrived with at the ambulance.
4
5 And so he treated him and it’s interesting to note that it was right after he was treated for
6 the elevated potassium that my son began to breath again spontaneously, where they then
7 had to treat him with a medication to paralyze him because they were scared that he was
8 going to pull out his intubation tube. And so it’s peculiar to the accused that Crown
9 prosecutor Clayton Giles would know to direct Dr. Alexander Cunningham away from an
10 issue that, if it were highlighted, it would blow a huge hole in the narrative and the entire
11 Crown’s theory.
12
13 At this point I would refer you to the affidavit of Bradford Stephan filed December 12th,
14 2018, Exhibit K, which is one of the lab reports showing high potassium that substantiates
15 exactly what the accused is saying in regard to the fact that there was an underlying
16 condition that they were aware of and that it was being shoved under the rug preventing
17 the defence from being able to actually see what was going on. We can also take a look at
18 Exhibit B of Bradford Stephan’s affidavit wherein we have a quote that I can just read from
19 Dr. Cunningham, it’s his report wherein he states: (as read)
20
21 Early in the transfer we received a phone call in the minimal blood
22 work that was received it was reporting that from the capillary sample
23 the potassium was 6.4. I opted to treat the potassium with a half-dose
24 of calcium chloride on the suspicion that it was possibly hemolyzed
25 and inaccurate.
26
27 Now the interesting thing is that this 6.4 was attained after already significant medical
28 treatment had been commenced and it’s quite likely that it was significantly higher before
29 they diluted his blood with 500 millilitres of fluid. During the testimony of --
30
31 THE COURT: So where is this taking us?
32
33 THE ACCUSED D. STEPHAN: This is for the sake of creating the joinder
34 between the Crown and the Alberta Health Service Employees. So first we’ve established
35 in R. v. McNeil -- or what we’ve attempted to establish in R. v. McNeil is that the Crown
36 and he RCMP are inseparable. And then further we show that the RCMP must have been
37 or were quite likely working with Alberta Health Services to be able to request documents
38 specifically by name, that we would claim only a trained medical professional would know.
39 And now we’re establishing that the Crown was aware of something going on here between
40 communication with them and an Alberta Health Services employee and that they were
41 intentionally directing that doctor away from that that issue.
 19

1
2 THE COURT: So I’m not going to engage with you in each of
3 your arguments as we go. But let me just take this potassium issue. So to the extent that
4 you and counsel and others on your behalf weren’t aware that potassium -- of all the issues
5 respecting potassium and you now see some smoking gun, in the new trial you may be
6 entitled to every piece of paper that deals with potassium. And you can use that evidence
7 either on your own or with an expert that can tell us what that means, because I can’t and
8 you can’t and Bradford can’t, but maybe some expert could produce that at trial to
9 demonstrate a reasonable doubt about the allegations made about you. And to the extent
10 that you want to bring a civil suit in court in another proceeding, you may be able to bring
11 in that evidence that you refer to as the smoking gun as a basis for damages and costs
12 against the Crown. I use the Crown in its broadest sense -- against the Crown or against an
13 agency of the Crown, whatever. But I don’t know what it does today for us in this
14 application because I’m not going to determine the merits of your application --
15
16 THE ACCUSED D. STEPHAN: And it’s my hope that by the time that I get to the
17 end of the oral submissions, hopefully it sews something together that you can then put
18 weight on this evidence.
19
20 THE COURT: Yes, well, you can -- you have the right to put it
21 on the record. We’ve given you a day to do it.
22
23 THE ACCUSED D. STEPHAN: Thank you. Thank you very much, Sir.
24
25 So during the testimony of Dr. Alexander Cunningham the Crown tells the witness he
26 doesn’t want him to talk about the potassium Ezekiel had. It’s clear that the Crown was
27 aware of an issue that involved that doctor. It is not reasonable to think that this exchange
28 was purely coincidental, especially given the fact that potassium, the word, is only
29 mentioned once --
30
31 THE COURT: Well, you said twice --
32
33 THE ACCUSED D. STEPHAN: -- otherwise -- or aside from this in a very lengthy
34 trial. So it wasn’t a -- it wasn’t a topic that was at hand. So it was very, very specific. The
35 Crown during his testimony also leads Dr. Cunningham away from his participation in the
36 ambulance bay in the Lethbridge ER. So you can find that on page 1570. If you go back a
37 couple of pages what you see is there’s leading around the actual participation that Dr.
38 Cunningham had in regards to some very key paramount times of Ezekiel’s care regarding
39 issues about intubation and cardiac arrest. It’s out position that through these actions the
40 medical doctors and the Crown have in fact created joinder.
41
 20

1 Okay. With respect to the questions of -- actually 10:13 -- I’m not sure if you’re wanting
2 to do a morning break?
3
4 THE COURT: No, keep going. I’ll tell you when we will.
5
6 THE ACCUSED D. STEPHAN: Thank you very much.
7
8 THE COURT: I said about sometime after 11.
9
10 THE ACCUSED D. STEPHAN: Okay. I think I’m going to be done in advance of
11 that.
12
13 With respect to the question of this Court’s jurisdiction towards costs, I go back again to
14 point 22 of the Attorney General’s submissions where he just says it has to be, you know,
15 the rarest of cases. And I would hope -- I would hope that this is in fact the rarest of cases
16 and that this is not something that is prevalent throughout the judicial system. And in our
17 search through various case law, we have yet to find another case wherein you could allege
18 that all these various parties have had this interaction to cover up the passing of a young
19 child.
20
21 I also want to go real quickly into this. If we go into Ms. Kristensen’s submissions, once
22 again from the 14th of January, and we go to point 15.
23
24 THE COURT: Are you talking about the same argument?
25
26 THE ACCUSED D. STEPHAN: Yeah, talking about the same argument.
27
28 THE COURT: Yes.
29
30 THE ACCUSED D. STEPHAN: Under the title of “Case Law”, point 15, and I’m
31 going to continue on for a couple of points here as they are relevant. Ms. Kristensen states:
32 (as read)
33
34 Costs are only awarded against the Crown in exceptional
35 circumstances.
36
37 We are saying that this is exceptional circumstances.
38
39 16. Exceptional circumstances may be made out if there is a marked
40 and unacceptable departure from the reasonable standards expected of
41 the prosecution.
 21

1
2 And we would say that we hope that this is in fact a marked and unacceptable from
3 reasonable standards based on what we’ve seen. We would hope that this is not the norm.
4 (as read)
5
6 17. Costs may be granted as a remedy under the Charter or pursuant
7 to the inherent jurisdiction of the court
8
9 18. Costs will only be awarded against the Crown as a Charter remedy
10 where there has been serious misconduct on the part of the Crown.
11
12 We’re saying there is in fact serious misconduct. (as read)
13
14 19. Costs may be awarded against the Crown pursuant to the court’s
15 inherent jurisdiction in circumstances short of Crown misconduct;
16 however, in such cases there must be circumstances which are rare,
17 unique, exceptional, or never to occur again.
18
19 And it is our position that this is in fact rare, exceptional, unique, and we sure hope that it
20 never is to occur again.
21
22 So in regard to Mr. Shewchuk’s point 22 of the Attorney General’s submissions from
23 January 14th, we do in fact to a point concede though we are not seeking for Legal Aid as
24 it is our position that it is greatly deficient and would not provide remedy to the
25 complexities of the case that we face moving forward. But we do concede to that point,
26 that it is only in the rarest of cases that it is within the jurisdiction of the courts to award
27 costs above and beyond what Rowbotham or Fisher would grant. And it’s interesting to
28 note the fact that --
29
30 THE COURT: Well, let me just be very clear there. If you’re
31 telling me that if you had brought a Rowbotham application or a Fisher application or had
32 submitted to me in one of those applications that you require costs going forward that
33 wouldn’t be covered by each of those and you don’t have the ability to fund themselves, I
34 may have discretion to award something for future conduct, not for past conduct. So if you
35 said, I need to hire an expert and Legal Aid, who is the agency that funds a Rowbotham
36 right or a Fisher and an expanded right -- and Legal Aid administering that won’t give me
37 the funds to hire an expert on potassium, I’m all ears. We’ll talk about that if you bring
38 such an application in February. So that is within my jurisdiction, without me getting too
39 precise about it. I’m sure the Crown might have some submissions on that. So let’s be very
40 clear. But that’s much different than awarding you something for alleged past misconduct.
41
 22

1 THE ACCUSED D. STEPHAN: Thank you, Sir. And it is the accused’s intent
2 through the application that we did make, not referencing case law that we felt would be
3 significantly deficient, to hopefully establish new case law here that would prevent the
4 general public finding themselves in these types of situations from being bulldozed over.
5
6 THE COURT: Well, that’s what I said. That’s a civil court and
7 another judge on another day.
8
9 THE ACCUSED D. STEPHAN: Thank you, Sir. Now, it’s interesting to note the
10 fact that no one is -- and when I say no one I mean the Crown or the Attorney General, is
11 arguing against the evidence provided in regard to our allegations. Rather, the arguments
12 against our application are almost entirely procedural in nature, and that seems to be an
13 element here at hand clearly. And so I do ask the courts to forgive my ignorance. The
14 evidence provided exceeds the level and volume of wrongdoing found in any other case
15 we were able to find. And R. v. Curragh is the closest to our case and, even so, it does pale
16 in comparison.
17
18 The misconduct that we face in the last trial, which is still at issue -- and this is where we’re
19 moving forward here, is it would be a different scenario, you know, if -- if there wasn’t the
20 disclosure issues, if we didn’t see -- you know, if we didn’t anticipate to see the same tactics
21 being utilized. If we didn’t see the witness list being stacked with the witnesses that
22 appeared to be heavily biased or the outlier witnesses from the last trial. If we didn’t see
23 that type of stuff taking place, then maybe we’d have a hope that this next trial would be
24 close to fair. But I think we’ve far exceeded that point, especially the fact that the recent
25 disclosure not only was deficient but what we found was 719 pages of the defence file
26 within it.
27
28 THE COURT: Well, that’s -- that’s -- on that point you waived
29 the privilege. You provided it to the RCMP. Your brother swore an affidavit that he
30 provided it to the RCMP. So if you had a privilege right, you surrendered the privilege.
31
32 THE ACCUSED D. STEPHAN: Would it not be unreasonable in the Province of
33 Alberta to think that if there was a crime committed and there’s evidence of such that you
34 could bring that forward to the authorities and the authorities would then not go and release
35 that to the accused parties?
36
37 THE COURT: Well, I’m not going to get into that in great detail
38 but you could certainly do it in a proper way, perhaps through counsel, maintaining your
39 privilege and releasing it for a very singular purpose. But that’s not what the evidence is
40 that I’ve read here. Your brother takes 719 pages or whatever it is to the RCMP and says
41 this supports our allegations, please investigate. And then you say that they made some
 23

1 mistake in disclosing it as part of the disclosure that came back to you through the Crown.
2 Because as you said earlier in other arguments, the Crown as in the prosecutor gets the
3 disclosure from the RCMP and is required to provide it. And so the RCMP is required to
4 give the Crown all of the information it has that may be relevant and there’s all the pages
5 that you’ve released. So if there’s a culprit, you know, look in the mirror. I’m sure Bradley
6 did it at your request, not on some -- as an agent of the Crown or on behalf of somebody
7 else. So that’s not going hardly anywhere I don’t think.
8
9 THE ACCUSED D. STEPHAN: That’s unfortunate --
10
11 THE COURT: It is.
12
13 THE ACCUSED D. STEPHAN: -- that --
14
15 THE COURT: You released it and now you’re telling me that
16 they shouldn’t have provided it. In the next breath you say they provide everything they’ve
17 got relevant to this case. Well, they did.
18
19 THE ACCUSED D. STEPHAN: That is a peculiar predicament that it puts I guess
20 any Canadian in, is that if there is an allegation against somebody in authority that people
21 would then be concerned to bring that forward to the police service in fear that that person
22 in authority would then be tipped off on what the allegations are so that they could then
23 attempt to pre-empt what they think is coming forward through way of proceedings.
24 Further to that, there’s an issue with -- is there not, with litigation privilege regarding
25 O’Connor and Mills?
26
27 THE COURT: Well, of course there is. The Crown is not -- the
28 prosecutor is not entitled to discussions between you and your counsel, for example, of
29 how you’re going to defend the case. But if you take all those discussions or documents
30 about them and give them to the RCMP, you’ve lost any privilege you had.
31
32 THE ACCUSED D. STEPHAN: There is no --
33
34 THE COURT: Privilege, it means that you have kept them to
35 yourself and not disclosed them and they’ve somehow got them improperly. In this case
36 they didn’t get them improperly, you gave them to them.
37
38 THE ACCUSED D. STEPHAN: And so there is no litigation privilege between us
39 and the --
40
41 THE COURT: Well, there was but you lost it as soon as you
 24

1 gave them.
2
3 THE ACCUSED D. STEPHAN: -- when we engaged with the RCMP.
4
5 THE COURT: Exactly. Now, there may have been ways where
6 counsel could have maintained that privilege saying we’re not releasing the privilege, we’ll
7 give you this information under certain conditions. I’m not going to pursue that, that’s not
8 my role. But you waived the privilege.
9
10 THE ACCUSED D. STEPHAN: Thank you, Sir. Okay. The misconduct that we
11 faced in the last trial which is still at issue increases the complexity, the burden, and the
12 cost of a new trial. We are not looking at all at the -- playing on the same grounds as we
13 did in the first trial. We are seeking a court appointed trustee and not a blank cheque so as
14 to dispel any concerns surrounding the potential abuse of such funds if the Crown sees it
15 fit to award such finds. At the end of the trial the remaining funds would be returned.
16
17 So further to the points that the -- that Mr. Shewchuk made and the Crown have made in
18 regard to availing ourselves through a Rowbotham / Fisher application, it is our position
19 that given the gravity of the misconduct of Alberta Justice employees as evidenced in the
20 materials, it would be unreasonable to expect fair treatment to Alberta Justice
21 administration of our legal counsel and expert resources that we will need to get -- to
22 hopefully attain a much closer to a fair trial. We would be very concerned moving forward
23 with the party administering our resources, the very same party that we are alleging --
24
25 THE COURT: You don’t have any resources ---
26
27 THE ACCUSED D. STEPHAN: -- in the wrongdoing.
28
29 THE COURT: -- you’re telling me and you’re not getting any
30 here.
31
32 THE ACCUSED D. STEPHAN: Right.
33
34 THE COURT: And you’re not getting any until a civil trial, if
35 ever. And we’re not postponing the criminal trial waiting on a civil trial because you’ve
36 already claimed in your material that there’s an infringement of your rights under section
37 11(b) for trial delay. So you can’t have that cake and eat it too.
38
39 THE ACCUSED D. STEPHAN: Thank you, Sir.
40
41 THE COURT: Unless under a proper legal position where you
 25

1 waive that right, waive the delay or any step in this (INDISCERNIBLE). Because the days
2 are coming and we’ve got a trial date set and that trial date will be done in accordance with
3 the time set and as much time as is reasonably necessary within the appropriate limits under
4 section 11(b) being a retrial. So anything that takes a day away from that that you cause or
5 you seek leave to delay doesn’t count. If the Crown seeks to delay it for some reason, or
6 the Court does, then it counts.
7
8 So back to my point, we’re not going to wait until a civil trial takes place. We’re handing
9 out dates for civil trial in Lethbridge in probably six months minimum and we’re not
10 waiting for that. And you -- presumably you’re going to proceed in Lethbridge as you are
11 with the criminal trial. That’s where the evidence -- that’s where the witnesses are.
12
13 THE ACCUSED D. STEPHAN: Thank you, Sir. And so I guess to solidify that
14 point, one of the great hesitancies with moving forward with the Rowbotham or Fisher
15 application was not only that it would -- it would be extremely deficient in regard to address
16 some complexities of the case that we are attempting to lay out here, but that we would
17 take major concern that the parties that we are alleging the wrongdoing against would be
18 the ones administering those accounts.
19
20 THE COURT: Well, let’s be clear. I don’t seek you to justify
21 why you’re not bringing a Rowbotham or Fisher application. You don’t want to do it, don’t
22 do it. But I’m not going to assume some malfeasance or misconduct by agencies involved
23 in the next trial because you failed to do it. And from what I know of those applications
24 and the funds that are generated, they’re funds that are administered through a lawyer. You
25 ask for a lawyer to be appointed, therefore a Rowbotham application, because you can’t
26 afford it you say -- and I’m not getting into the merits --
27
28 THE ACCUSED D. STEPHAN: M-hm.
29
30 THE COURT: -- and that lawyer then takes the steps that he or
31 she thinks they need to do and charges back to the government the costs of that process.
32 And if the fees aren’t high enough, then they’ll -- that’s where Fisher comes in. And if they
33 need an expert opinion from somebody, that’s another thing. But you don’t have to justify
34 why you’re not applying for it. Some people may say you’re a fool for not doing it, but
35 that’s your decision. You have the right to represent yourself and Ms. Stephan has the right
36 to represent herself, and you don’t represent her and she doesn’t represent you. You’re each
37 individuals although you’re jointly charged. You don’t need to justify to me why you don’t
38 do it. But we’re not going to sanction you for not doing -- sorry, we’re not going to give
39 you any points for not doing it because of some alleged misconduct which you haven’t
40 proved.
41
 26

1 THE ACCUSED D. STEPHAN: Yes. And so I guess the point of me bringing me

2 that forward is merely to provide context --
3
4 THE COURT: Yes.
5
6 THE ACCUSED D. STEPHAN: -- as to why we wouldn’t want to
7 (INDISCERNIBLE) and waste the Court’s time as well as resources in filling out
8 applications that --
9
10 THE COURT: You don’t get any leave from that. If you want to
11 bring a Rowbotham and Fisher application, do it. Don’t worry about wasting the Court’s
12 time. That’s an appropriate application if the facts match it. So you’re not getting any
13 points for failing to do it. I mean, I can maybe put that in a better way, but it’s your choice.
14 Represent yourself.
15
16 THE ACCUSED D. STEPHAN: Thank you, Sir. Okay. So moving on, in respect
17 to the questions of cross of the prior trial, which is another key element of the application
18 seeking for costs with the trial being overturned being no fault of our own. I would refer
19 you to page 21 of Mr. Shewchuk’s arguments wherein a cost -- where the costs are
20 calculated from their standpoint based on the limited invoices that we were able to get due
21 to the time constrictions of --
22
23 THE COURT: Due to which?
24
25 THE ACCUSED D. STEPHAN: Due to the time constrictions of moving to
26 Grande Prairie in the middle of this application being made, we unfortunately were not
27 able to get a lot of the invoices in. And so unfortunately that falls on us as we had to juggle
28 out of between filling out the application and what we thought would be appropriate versus
29 --
30
31 THE COURT: Well, it kind of doesn’t matter --
32
33 THE ACCUSED D. STEPHAN: Okay.
34
35 THE COURT: -- what Mr. Shewchuk said because there’s no
36 application for him to address. I think he’s filed this material on the basis of an anticipation
37 that that might have changed. So it hasn’t changed and so he’s filed a lot of material that’s
38 not going to get the time of day.
39
40 THE ACCUSED D. STEPHAN: Okay. So I guess just to quickly skim over that
41 if it’s of any weight to the Court to consider after. The one issue that we do take in regard
 27

1 to him calculating $528,030.94 is we make note that he did fail to account for some of the
2 invoices that we had provided in regard to our expert witness, which would be page 43 to
3 48, which is Exhibit F of my supplementary affidavit of December 13th wherein there is
4 listed another $44,419.76 in billable hours that were not included in Mr. Shewchuk’s
5 calculations. I apologize, Sir, I’ve got to go take a break.
6
7 We would, however, consent to the cost calculations presented by Ms. Shewchuk plus the
8 invoices omitted on the basis that it acknowledged that they are incomplete or if the courts
9 did see it fit that there was costs given for the previous trial that was overturned as no fault
10 of our own, that perhaps there could be a quick order to get the other invoices together that
11 would be agreeable between the Attorney General and the accused and that we could work
12 it out. So one of two things there. Either what he has calculated thus far plus the invoices
13 that we did provide or some other remedy to getting a proper accounting done in that very
14 timely fashion. The total calculation of invoices that we were able to discover prior to the
15 deadline and submitted is $572,450.74 and, as mentioned, that is greatly deficient in regard
16 to the direct legal costs as well as obviously the other cost that that first trial had placed as
17 a burden upon myself and my wife.
18
19 Okay, moving forward. I’m getting close to being done here. So as a point of clarification
20 regard to problem I’m going to briefly summarize the issues that we face in the upcoming
21 trial and those impacted -- those that impact our previous trial that speak to R. v. Curragh.
22 Now, this summary is not all of the issues, not even a majority, but it is what we were able
23 to compile on short notice with the timelines that we were given for the applications before
24 the courts today. So it’s a broad sampling. So just to go through point form, I can -- if you
25 want I can reference the sections and the points of the argument’s brief that it references,
26 but they are all found within the element section of the argument brief that was submitted
27 January 7th. Or I can go through them, and they are all found there, and for the sake of
28 time I can just go through and briefly summarize the issues that would bridge any gaps
29 between us and R. v. --
30
31 THE COURT: Well, I’ve read your argument so I don’t need to
32 read it again, I don’t need you to read it again. But if there’s some oral nuance that you
33 want to raise that’s relevant, then I’ll hear you.
34
35 THE ACCUSED D. STEPHAN: Okay. I’ll just quickly skim through it. So we
36 have that the last case was pled with the prosecutorial misconduct, repeated outbursts from
37 the actual Crown prosecutors themselves, there was a lot of drama, inappropriate
38 behaviour, laughing being directed towards the accused, even yelling. There was witness
39 tampering is what we’re alleging in regard to the Dr. Cunningham and prosecutor Clayton
40 Giles issue there directing away from potassium. We feel that there’s gross negligence of
41 the Crown duties by way of proper collection of disclosure and we are still attempting to
 28

1 get a lot of it.

2
3 Misrepresentations to the Court wherein during final submissions to the jury Crown
4 prosecutor, Ms. Vike (phonetic) misrepresented facts, and that’s found in the arguments
5 brief there, as well as the most recent affidavit from Ms. Hurley (phonetic), I guess going
6 back to December, that there was sworn information that was incorrect and we address
7 those issues in my December 21st affidavit. Crown duties regarding --
8
9 THE COURT: Sorry, that name again, Ms. -- the name that you
10 refer to is?
11
12 THE ACCUSED D. STEPHAN: Suzanne Hurley with the Crown.
13
14 THE COURT: Right, okay.
15
16 THE ACCUSED D. STEPHAN: There was an affidavit submitted.
17
18 THE COURT: Yes. No, I read it.
19
20 THE ACCUSED D. STEPHAN: The Crown duties regarding the perjury of the
21 witnesses going back to R. v. McNeil, the case law there, that is our understanding that an
22 inquest would have to be made on behalf of the -- or the Crown would have to engage in
23 an inquest to identify what took place as to why there was perjuries and then report on that
24 and we have heard nothing. Crown prosecutors are rather aware or should be aware of
25 crimes and what that would be is there is very clear evidence that was brought forward in
26 not only the preliminary trial but in the trial proper wherein it was shown that paramedics
27 had been requesting proper equipment in the ambulances within the Cardston zone for over
28 a year and they failed to -- or Alberta Health Services failed to equip that ambulance
29 properly until one week after the passing of my son who needed that equipment at that
30 time. The Crown prosecution is aware of that, they’re aware of perjury, they’re should be
31 aware of falsification of evidence from what we’re alleging is coming out of the medical
32 examiner’s office. And then also destroyed evidence because we’ve been making multiple
33 requests for evidence that is referenced in the medical files but is not producible to this
34 day. Medical evidence referenced by other medical documents that are being used by the
35 Crown and yet we can’t get our hands on those documents referenced.
36
37 Unlawful tactics being employed within the trial wherein they ambushed us last -- or in
38 2016 with an issue surrounding alleged dehydration that was not substantiated in any
39 medical file. It was merely by memory from a doctor four years after the fact, but it wasn’t
40 notable enough for him to make notes in his notes about dehydration and it was at a point
41 where they had already exhausted their witness list and we weren’t going to have an
 29

1 opportunity to then put it forward to any expert witnesses to have it undone. That was put
2 before the jury and that was where a mistrial was declared that we weren’t granted.
3
4 Collusion between Crown prosecutors and witnesses to facilitate perjury. So when we take
5 a look at the dehydration issue with Dr. Lloyd Clarke, the Crown had prepped him and had
6 basically -- though he wasn’t qualified as an expert witness they had gone through a lot of
7 prep work or a lot of testimony substantiating him as an authority. And then further to that
8 we have the issues with -- skirting around certain issues of potassium and spontaneous
9 respiration of my son and intubation complications. And then we have prosecutorial
10 bluffing which cost us a fair bit --
11
12 THE COURT: Prosecutorial which, sir? Prosecutorial which?
13
14 THE ACCUSED D. STEPHAN: Bluffing.
15
16 THE COURT: Bluffing.
17
18 THE ACCUSED D. STEPHAN: Yes. There was an issue where during the
19 preliminary trial of 2014 we were -- we were told that a major element of the case would
20 be surrounding vaccinations. And as such we put a fair bit of resources into it and -- I mean,
21 even at one point I went and flew out to Chicago and stayed a week just to meet with some
22 of the world’s leading experts on vaccination. And we put a fair bit of resources into it and
23 one week prior to the trial it was shut down and, unfortunately, it took us away from dealing
24 with the actual issues at hand that would be found within the trial proper.
25
26 Going further, leaving the prosecutorial issues, we go into the judicial bias and misconduct
27 from our first trial. Now, if we were to take a look at all the evidence that was brought
28 forward to the courts, it’s interesting that in the findings of facts that there was a lot of
29 exculpatory facts that were omitted and, basically, what was done is the findings of facts
30 were highly prejudiced and depicted a narrative of -- that would leave the average person
31 reading it with the idea that there was a constant degradation in the health of my son and
32 that we were negligent parents because we didn’t do anything about it. The interesting thing
33 is that there was certain events that were left out in regard to how he was doing, the waxing
34 and waning, the actual severity of his condition. And so the findings of facts were from
35 what we say -- or our position is - is heavily biased. And then further --
36
37 THE COURT: Well, the jury is the one that found the facts.
38 Judges in a jury trial don’t find facts. They might facts relevant to an application but not
39 on the issue of guilt or lack of guilt. So -- and you raised with the Court of Appeal and
40 ultimately with the Supreme Court issues that you -- counsel on your behalf sought to raise
41 to seek to turn aside the verdict and get a new trial and you’ve done that and you’ve got
 30

1 the remedy. You got a new trial.

2
3 THE ACCUSED D. STEPHAN: Yes, it’s just interesting to note --
4
5 THE COURT: You may have whatever beliefs you have about
6 bias and the judge, but that’s water under the bridge.
7
8 THE ACCUSED D. STEPHAN: Okay.
9
10 THE COURT: And you have no -- you have no action against
11 the Crown for your suspicions, your allegations with respect to the judge. They’re not in
12 control of the judge.
13
14 THE ACCUSED D. STEPHAN: That’s right.
15
16 THE COURT: He’s independent and there’s no right in law to
17 sue him. So that’s not going anywhere.
18
19 THE ACCUSED D. STEPHAN: The point that we’re trying to bring up here is
20 that this led to a wrongful conviction, that it was the substance behind the errors in law is
21 what we are alleging that ultimately leave us in a position where here we are today going
22 back right to square one, having to foot the bill for a new trial after we’ve already paid for
23 a previous trial. And that -- that’s the big issue at hand here that we’re taking in regard to
24 costs previous.
25
26 THE COURT: I understand. That’s what your civil action can
27 be about if you want to take the risk to bring it.
28
29 THE ACCUSED D. STEPHAN: So the interesting thing is, you know, the jury
30 didn’t write the findings of fact.
31
32 THE COURT: They don’t.
33
34 THE ACCUSED D. STEPHAN: Right. And so the judge couldn’t have possibly
35 gotten into the heads of the jury to then write the findings of fact that the jury had found.
36
37 THE COURT: Well, everything the judge said is on the record.
38 Any communication between the judge and jury is on the record and that would be the
39 instructions that the judge gave to the jury. And it’s those instructions that Justice O’Ferrall
40 said were confusing, among other things, and the Supreme Court of Canada agreed.
41 Therefore, a new trial. So there’s no other ability to get evidence. It’s all on the record. It’s
 31

1 in the transcript.
2
3 THE ACCUSED D. STEPHAN: Okay. My apology, I might be misrepresenting -
4 - or not misrepresenting but referencing technically the wrong -- the wrong thing here.
5 During the sentencing wherein --
6
7 THE COURT: Well, sentencing is gone. There’s no sentence
8 anymore.
9
10 THE ACCUSED D. STEPHAN: Right. But what I’m saying here is this just lends
11 to, you know, the overarching issue that we -- that we faced within the courtroom last time
12 and where we’re saying that there was a bias that led up to a wrongful conviction and that
13 that needs to be weighed in regard to costs previous. And so during the sentencing --
14
15 THE COURT: I just -- I’m making the point that you’re not
16 going to have a civil case that’s going to go to the merits on that point, full stop. You can
17 charge -- say in your arguments in a civil case, well, the Crown made all of these errors
18 and its agents made all these errors and all of the participants made all of these errors and,
19 therefore, we’re entitled to costs. You can have your day in court on that if you want at the
20 risks that go with it. All I’m saying is that one of those things that won’t be there is bias by
21 the judge because it’s not something that you can litigate, full stop. So I don’t want you to
22 assume that you can have some action in civil court (INDISCERNIBLE) against the judge.
23 That’s not on so I don’t want you to get that impression.
24
25 THE ACCUSED D. STEPHAN: Okay. And in R. v. Curragh, is that not one of the
26 big issues that is weighed, is the issue surround the justice?
27
28 THE COURT: Well, that was an issue before the appeal courts
29 and the appeal courts made a finding and it was something perhaps that you could have
30 raised in your appeals to the courts to get a direction like Curragh. I didn’t go back through
31 the arguments before -- I don’t even have them -- the arguments before the Court of Appeal
32 and Supreme Court of Canada to see if that was raised, but as I understand it there was no
33 -- nothing raised in the appeals with respect to that and there was no findings of either the
34 appeal court or even the dissenting judge in the appeal court about that. Certainly not in
35 the Supreme Court of Canada which gave a two-paragraph decision. So --
36
37 THE ACCUSED D. STEPHAN: Okay.
38
39 THE COURT: -- so there’s no finding. Had that been an issue,
40 then you -- counsel on your behalf might have raised it and made an argument and got a
41 ruling something like Curragh. That wasn’t done. So now that there’s a new trial the court’s
 32

1 not going to go back and do that again.

2
3 THE ACCUSED D. STEPHAN: So it -- there would be no consideration taken on
4 biased findings of facts that would then -- a new precedent in law was set -- I believe it’s a
5 new precedent in law wherein, I guess we’d call it public shaming wherein we were -- or I
6 guess my wife because I was incarcerated at the time into solitary confinement -- wherein
7 she basically had to wear a sandwich board around her neck stating what had taken place
8 in regard to the ruling of the judge. Now, I’m speaking metaphorically because that’s what
9 you would have found in the past. I don’t think within the jurisdiction of Canada but in
10 other jurisdictions like the U.S. where you’d have this public shaming taking place and
11 what she had to do was then post that on various social media places, Collet.
12
13 THE COURT: So let me say I’m not here to make any decisions
14 about any aspect of a civil claim. I am saying in the course of listening to your arguments
15 on those matters which are not before me that I don’t want you to get the impression from
16 anything I say that there’s any, for lack of a better word, legs, any chance of that
17 succeeding. So if you want to try it on with a judge in a civil case at the risk of the costs
18 that go with it, costs of argument and costs to the Crown if you lose, then go for it. I’m not
19 giving a ruling on that. I’m just wanting you to be very clear in your discussions with me
20 that I think that there’s not much prospect of that being successful.
21
22 THE ACCUSED D. STEPHAN: Okay. And it’s the accused --
23
24 THE COURT: But I’m not ruling on it. You want to argue it in
25 front of another judge in the proper way, fill your boots.
26
27 THE ACCUSED D. STEPHAN: Okay. And it’s our position as the accused that it
28 is within the jurisdiction of this Court -- I think criminal proceedings as found in R. v.
29 Curragh to be able to weigh certain elements and award costs for trial past and trial future.
30 So I’ll just I guess skim through that, touch on the points then real quick as -- yeah.
31
32 So censoring of defence witnesses, there was a double standard during the trial of -- of
33 testimony given by Crown witnesses versus the testimony that wasn’t allowed to be given
34 by accused witnesses. The gatekeeper role was opened up wide in favour of the Crown
35 setting a new precedent that was actually just recently cited in R. v. Clark (phonetic) from
36 October of this -- or of 2018, citing R. v. Stephan as the authority as to why in complex
37 medical cases the Crown can now call more expert witnesses than normal. And that was -
38 - that was Justice Jerke in our opinion misusing the gatekeeper role in favour of the Crown.
39 We had (INDISCERNIBLE) case law towards the end in regard to the jury charge and
40 ultimately there was errors in law that, according to Justice O’Ferrall, basically put the jury
41 in a position where they had no choice but to find us guilty based on those errors in law.
 33

1
2 Moving forward real quick just to skim down for the sake of time, crimes involved in the
3 prosecution of the accused. We’ve got a -- we’ve got perjury that’s taken place a number
4 of times as found an issue with Criminal Code section 131. That can be found in section 2,
5 Elements, point 17.
6
7 THE COURT: We know what the elements of perjury are.
8 There’s been no perjury proved.
9
10 THE ACCUSED D. STEPHAN: And so how do we go about proving that even
11 though there be a pretty --
12
13 THE COURT: I’m not telling you how to do it. I’m telling you
14 it’s not this case. It’s not this proceeding.
15
16 THE ACCUSED D. STEPHAN: Okay, thank you. Okay. Giving of contradictory
17 evidence, Criminal Code 136. I mean, these are issues that we’re saying should be looked
18 into and haven’t been. Fabricating of evidence, Criminal Code 137, that’s from the OCM’s
19 office, as well as what appear to be Calgary Laboratory Services and Alberta Children’s
20 Hospital. Obstructing of justice, public mischief, and then the big one that is pretty crystal
21 clear and that we’re distraught has not been looked into either by the RCMP or by the
22 abundance of evidence that has come forward in the previous two trials, is the criminal
23 negligence resulting in death of my son. And we find that ironic that we would be here
24 under charges for a lesser charge when there’s another party involved where there is a
25 clear-cut case of criminal negligence. They knew they were supposed to get that equipment
26 into the ambulances. They had been warned for over a year and they finally act on it one
27 week after the passing of my son. And yet no action has taken place. And when we bring
28 this forward to the RCMP, they don’t incite any investigation to it but, rather, they take our
29 defence file that’s marked up and they hand it over to the Crown. And we’re alleging
30 conspiracy, Criminal Code section 465, spoliation of evidence.
31
32 And then we’ve -- going into the RCMP issues there’s been a clear case of misconduct and
33 bias. Angela Kaback’s affidavit in my supplementary affidavit from December 14th, I
34 believe it is, makes note of this when she went and sat down with the RCMP officer that
35 charged us and that there was --
36
37 THE COURT: Who -- who went and said that?
38
39 THE ACCUSED D. STEPHAN: My older sister, Angela Kaback.
40
41 THE COURT: Okay.
 34

1
2 THE ACCUSED D. STEPHAN: Shortly after being charged had initiated
3 dialogue with the charging RCMP officer. And in point 5 of her affidavit --
4
5 THE COURT: Sorry, in point which?
6
7 THE ACCUSED D. STEPHAN: Point 5 of her affidavit, her second affidavit. The
8 first one and then there’s a second one.
9
10 THE COURT: This is Exhibit 4?
11
12 THE ACCUSED D. STEPHAN: I’m sorry?
13
14 THE COURT: This is Exhibit 4?
15
16 THE ACCUSED D. STEPHAN: This is --
17
18 THE COURT: To your affidavit, the one we’re talking about
19 earlier today.
20
21 THE ACCUSED D. STEPHAN: I believe it’s Exhibit 2. I apologize, I don’t have
22 a stamped version of it. I’m pretty sure it’s Exhibit 2.
23
24 THE COURT: Well, where -- where do I find it then? I’m just
25 wanting to know what you’re referring to.
26
27 THE ACCUSED D. STEPHAN: Okay. So my supplementary affidavit we have
28 Exhibit 2, which is --
29
30 THE COURT: Supplementary of December 14th?
31
32 THE ACCUSED D. STEPHAN: That’s correct, Sir.
33
34 THE COURT: It’s actually the 13th and you’re referring now to
35 Exhibit what?
36
37 THE ACCUSED D. STEPHAN: Exhibit 2, I believe, or ‘B’.
38
39 THE COURT: Sorry, there’s no Exhibit 2, there’s page 2. Is that
40 Exhibit B --
41
 35

1 THE ACCUSED D. STEPHAN: Yes, yes, page --

2
3 THE COURT: -- as in Bob?
4
5 THE ACCUSED D. STEPHAN: Yeah, that’s correct.
6
7 THE COURT: Okay. So that’s what we’re talking about.
8
9 THE ACCUSED D. STEPHAN: Yeah, and there should be five points on there?
10
11 THE COURT: Yes.
12
13 THE ACCUSED D. STEPHAN: Okay. So if we go down to point 5 she says --
14
15 THE COURT: Yes, I’ve read it.
16
17 THE ACCUSED D. STEPHAN: Okay. Yeah: (as read)
18
19 During this conversation he described how he was told that David
20 Collet would be very uncooperative and difficult to contact or get a-
21 hold of. Sergeant McCoy described how he left his card at David and
22 Collet’s residence outside the Glenwood, Alberta, and he was
23 surprised to receive a phone call from David and that he and Collet
24 came into the Raymond detachment with no problems whatsoever.
25
26 So there appears to have already been a bias or a prejudice created through his conduct --
27 or contact with -- I’m going to assume the Crown. Whoever was instructing him to lay the
28 charges. You’ll find further stuff in Bradford Stephan’s affidavit about biases from this
29 same RCMP Sergeant. It appears that the RCMP engineered the case based on the
30 statements that they avoided, the statements they took, and the evidence that they were able
31 to cherry pick. Statements were not taken of care providers, which would establish very
32 important facts that have now come into question. And then, though we’ve had the
33 discussion, it is our position that there is a breach of litigation privilege in regard to the
34 documents that we did give them.
35
36 Just one moment here, Sir. So I just want to put on the record here citing the case of Lizotte
37 -- I hope I’m pronouncing that right -- Lizotte v. Aviva Insurance Company of Canada from
38 --
39
40 THE COURT: Is that in your material?
41
 36

1 THE ACCUSED D. STEPHAN: It is.

2
3 THE COURT: And where do I find that?
4
5 THE ACCUSED D. STEPHAN: Page 34 of the appendix.
6
7 THE COURT: Thirty-four of the appendix to what, to your
8 argument?
9
10 THE ACCUSED D. STEPHAN: Yes, of the arguments brief.
11
12 THE COURT: Okay. I see it on page 34, yes, okay. I’ve got it.
13
14 THE ACCUSED D. STEPHAN: And so I’ll just start reading real quickly here:
15 (as read)
16
17 Both the Superior Court of Quebec and the Quebec Court of Appeal
18 held that litigation privilege cannot be abrogated absent an express
19 provision. The Supreme Court unanimously dismissed
20 (INDISCERNIBLE) appeal. The Supreme Court of Canada identified
21 elements of litigation privilege as follows: Litigation privilege is to
22 ensure the efficacy of the adversarial process.
23
24 We’re saying that’s been breached. (as read)
25
26 Litigation privilege is temporary and lapses when the litigation ends.
27
28 We’re still under litigation today: (as read)
29
30 Litigation privilege applies to unrepresented parties even where there
31 is no need to protect access to legal services.
32
33 That’s fitting. (as read)
34
35 Litigation privilege applies to non-confidential documents. Litigation
36 privilege is not directed at communications between solicitors and
37 clients as such. In addition to affirming the fundamental importance
38 of litigation privilege in adopting the clear, explicit, and unequivocal
39 language test for statutory abrogation from the solicitor/client
40 privilege context, the Court in Lizotte also provided significant
41 clarification of the scope of protection provided by litigation
 37

1 privilege, in particular, the following rules will have brought

2 application to litigation privilege claims in Quebec and across
3 Canada.
4
5 And then it goes down to the test, but for the sake of brevity I likely won’t reference that.
6 And this just goes further to illustrate the RCMP bias and misconduct wherein they took
7 this vast amount of information that we had marked up, jotted notes on, highlighted
8 particular issues in regard to what we had discovered, and they did not open up an
9 investigation. But they did hand that over to the Crown, which then basically released our
10 defence file.
11
12 All right, just about done here. Hardship. The prior case costs, we have the proper
13 accounting but it has been -- created a substantial state of hardship, draining us and
14 depleting us of many resources that we had somewhat available at that time, to liquidate
15 different properties -- or property -- and to be able to use that towards this litigation process.
16 And now we’ve depleted that. Hardship on the family that this whole case has created has
17 also created a great loss in work based on media representation. The ability for us to operate
18 in society as a whole has been largely compromised. And then the greatest one is the fact
19 that we have to in our very strong opinion unjustly re-live the death of our son over and
20 over and over again in the most horrific and twisted and distorted ways.
21
22 Complexity. The file is fraught with complexity when you take a look at all the things that
23 need to be overcome, all the hurdles that need to be jumped over in regard to what we’re
24 saying are distortions and mis-truths, lies, deceptions. Medical experts required for the next
25 trial is going to be substantive as there is going to need to be medical experts to combat the
26 medical experts that the Crown is going to bring forward who have -- if there is, like we
27 say there is, a different causation of death -- they have motive to collude and work together.
28 And so for us to be able to overcome that, it’s going to take a substantial amount of
29 resources, far beyond what we had in the first trial because we weren’t aware of these issues
30 going into the first trial.
31
32 Complexity. The falsification of the autopsy and the withheld evidence that accompanied
33 that that would have absolutely obliterated any of those findings of fact that were included
34 in the autopsy. We’ll have to hire an expert witness for that. We’ll have to somehow undo
35 what we’re claiming is a perjury of the Crown witnesses and rectify that issue through
36 competent medical experts. We’ll need a medical investigation team into it that can actually
37 be qualified as expert witnesses and attest to the gross issues on the file. We’ll likely have
38 to have -- to combat all the perjury of the Crown witnesses, we’ll likely have to call in more
39 witnesses that were there that the Crown didn’t put on the list last time. And not for the
40 sake of in inquiry, but for the sake of getting down to what the truth is and that justice is
41 fully dependent upon the truth being established.
 38

1
2 And then, ultimately, --
3
4 THE COURT: Well, you say getting to the truth. I think you
5 misapprehend the criminal process. The criminal process is that the Crown has to prove
6 your guilt beyond a reasonable doubt -- you and Ms. Stephan beyond a reasonable doubt
7 on the elements of the charge. It’s not an investigation in the criminal case of the cause of
8 the death of your son. That may come out as part of it or some of it may come out, but it’s
9 not an inquiry as to the cause of death. It’s an obligation on the Crown to prove the elements
10 of the offence and that may or may not establish the cause of death. It may establish that it
11 contributed to death, it -- I’m not going to get into the elements of failing to provide
12 necessaries. And the case talks about the case in front of -- Justice O’Ferrall talks about the
13 standards of what a medical doctor would do versus what a parent would do. I mean, those
14 will be arguments I’m sure in the trial. The standard that’s applicable to you as a parent
15 may not be the standard that’s applicable to Dr. Cunningham or somebody else.
16
17 So, I mean, those are -- let’s be clear. This is not an inquiry and it will not be an inquiry
18 and it will not be allowed to be an inquiry. Crown can bring whatever evidence that they
19 want that’s relevant and admissible to prove your guilt beyond a reasonable doubt. You’re
20 entitled to bring evidence to contradict that, but it’s not an investigation. So let’s be very
21 clear. We’re not going to spend, you know, a hundred days in trial investigating each and
22 every aspect. If the Crown doesn’t prove that you’re responsible under the elements of
23 providing necessities, you will be found not guilty. And if they do, you will be found guilty.
24 So let’s understand, before you get any views that this is going to be a massive investigation
25 of every cause, we’re not doing that.
26
27 THE ACCUSED D. STEPHAN: Thank you, Sir. And it is the accused’s position
28 that because of death it is absolutely necessary to be established to provide proper context
29 on how to weigh the facts that will be presented to the Court. Because if my son did have
30 bacterial meningitis and (INDISCERNIBLE) empyema as listed on that autopsy report,
31 that would I would assume make the courts apply much more weight to some of the
32 evidence that will be presented based on the context of what symptoms would accompany
33 those issues. Whereas, if he didn’t die from that and, in fact, it was medical misadventure
34 that he died from, that he required medical attention -- proper medical attention -- due to
35 an entirely different issue that was treatable and would have been unforeseen, then that
36 paints an entirely different picture and I would assume that the courts would then apply --
37 or put weight -- or place weight differently on different facts.
38
39 THE COURT: Well, that goes to the ability of the Crown to
40 prove things beyond a reasonable doubt and the ability of the defence, if you wish -- you
41 don’t have any obligation to prove anything -- but you can draw to the Court’s attention
 39

1 matters which cause doubt in the context of reasonable doubt. The Crown has got to prove
2 beyond a reasonable doubt. You can sit there mute and say nothing or you can challenge
3 the Crown’s evidence by cross-examination and by providing other experts that say there’s
4 some real doubt here that they failed to provide the necessities. You know, here’s another
5 smoking gun.. So those are things that you are entitled to full answer in defence. All I was
6 saying is you’re not entitled to an inquiry and there may be a difference between those two.
7
8 THE ACCUSED D. STEPHAN: Yes, thank you very much, Sir. And so the last
9 point in establishing complexity is in regard to specialty lawyers. That your typical lawyer
10 or lawyers are not likely going to be able to handle the case that’s before the courts today.
11 There’s going to need to be lawyers that are well versed in being able to uncover what we
12 say is corruption, as well as there’s going to need to be lawyers that are well versed in
13 medical malpractice cases. And so we don’t feel that it’s going to -- that with the
14 complexity of this case that simply a lawyer or two lawyers of normal calibre would be
15 able to handle what we are identifying as a gross imbalance of power.
16
17 We have state agencies involved in wrongdoing and the state controls key aspects of
18 authority or proceedings in evidence, and yet we see here where there is a misguiding of
19 justice because of the vast amount of resources that they have available to us - or to them.
20 Resources that we do not have available to us, that the average Canadian would never
21 dream of having access to. And so there is a gross imbalance of power that prevents an
22 individual like myself and my wife from being able to adequately combat the situation at
23 hand because of the amount of players in it that stand to benefit or be harmed by the truth
24 coming out. We have prima facie evidence that exists of this -- of these issues -- of the
25 disclosure issues, the spoliation and fabrication of evidence issues. And the interesting
26 thing is that the state pursued litigation in spite of the known issues at law and then they
27 continue to do so today. And so this case is extremely complex.
28
29 And then as we’ll probably see come up in February here, we have Charter violations in
30 regard to this case, being section 7, right to life, liberty, and security of the person; section
31 11(d) right to a fair public hearing; section 12, right to not be subjected to any cruel and
32 unusual treatment. That was the fact there is --
33
34 THE COURT: Well, you won’t be bringing it up in February
35 relating to past conduct.
36
37 THE ACCUSED D. STEPHAN: Okay.
38
39 THE COURT: So that’s my point throughout. February is about
40 the evidence and the Charter breaches, if alleged, that relate to the new trial. Not what
41 happened in the last trial. And it will not be allowed to be such, full stop.
 40

1
2 THE ACCUSED D. STEPHAN: Thank you. I appreciate the clarification. That
3 will likely assist us in --
4
5 THE COURT: And so, at the risk of oversimplification, it will
6 be Charter breaches on things that happened up to if any -- up to the conclusion of the
7 police investigations. So, in the course of their investigation if they breach the Charter in
8 taking a statement from you, interrogating you, not giving you rights to a lawyer, whatever
9 things it might be, that's when the majority if not all of the Charter issues will arise and it's
10 not about the conduct of the RCMP on the witness stand and during that period of time.
11
12 Now, there may be some exceptions which you're going to have to convince the Court that
13 there are those exceptions. So, it's -- this is not about the last trial. This is about the next
14 trial. What evidence are they going to bring and is it admissible? And is it evidence that
15 should be kept out because there was some Charter breach?
16
17 THE ACCUSED D. STEPHAN: Okay. And I would anticipate that the inability to
18 access certain documents - medical documents --
19
20 THE COURT: Well no, that's very much in the open. You're
21 entitled to full disclosure from the Crown of the things the Crown has that are relevant and
22 material.
23
24 THE ACCUSED D. STEPHAN: Wonderful.
25
26 THE COURT: You're entitled to make an application - an
27 O'Connor or Mills application for material that you believe and can convince the Court is
28 relevant and material to the trial that other parties have that you don’t have.
29
30 Now, it sounds like you've got a lot of that in this "investigation" you've done and I'm not
31 making any comments about that or about the fact you didn’t. If there is a piece of paper
32 or other information that some third party had that's relevant to this that you can establish
33 the relevance, that's what an O'Connor/Mills application is. The law says it's not a fishing
34 exercise. You can't be kind of going through Alberta Health Services from one end to the
35 other to see what you might find, what needles you might find in the haystack, but if you've
36 got evidence that you can bring to the Court that there is a document, maybe one that
37 describes the potassium contents and you don’t have it, well, that's quite -- that's about
38 what will be produced for the future trial.
39
40 THE ACCUSED D. STEPHAN: Perfect, and --
41
 41

1 THE COURT: So, I want you to be very clear. We′re not

2 restricting any rights that you had as at the date of the first trial then and -- because that's
3 gone, the date of this trial, those are rights that you can pursue and you maybe successful
4 in your application and you may not be. I don’t know. We'll have to see what you bring.
5
6 THE ACCUSED D. STEPHAN: Thank you very much for that --
7
8 THE COURT: And who has the onus? Sometimes the Crown
9 has the onus and sometimes you have the onus. Mostly, in Charter applications, you have
10 the onus to demonstrate on the cases of documents that they're relevant and material and
11 they're necessary for a full answer in defence and so if you demonstrate that, we will be
12 directing those parties to provide them.
13
14 THE ACCUSED D. STEPHAN: Perfect. Thank you very much for that
15 clarification. And not to digress too much from this, but in regard to what you were bringing
16 up there surrounding, you know, it's not to be a fishing expedition, the question arises is if
17 the RCMP obtained certain medical records through their investigation, and those were
18 being used in proceedings, would it not be appropriate to think that perhaps then if they
19 can use certain medical documents that all medical documents surrounding the care of my
20 son would be relevant?
21
22 THE COURT: I'm not ruling on that today.
23
24 THE ACCUSED D. STEPHAN: Okay.
25
26 THE COURT: So, I'm just talking in generalities. You're
27 entitled to bring the application for evidence you believe is material and relevant and
28 disclosure you don’t have. I'm not making a ruling on it today and I'm not speculating
29 today.
30
31 THE ACCUSED D. STEPHAN: Okay, thank you very much. Okay, so just to
32 finish off on that point then, we have a section 15 issue, the right to equal protection and
33 benefit of the law and that's kind of a bit of a reversal on it, but the fact that there isn't two
34 charged parties in this but rather, just us - me and my wife - and not Alberta Health Services
35 looked peculiar to us when you have a clear-cut case. And then 24(1), 24(2) of the
36 Charter in regard to remedy.
37
38 But just to come into closing fairly quickly here, so, based on the complexity and
39 everything that surrounds this case, it's obvious at least to us that this case that's upcoming
40 - the trial - will be extremely complex and fraught with tainted evidence and bias from the
41 witnesses once again - the investigators and the Crown who from our standpoint have all
 42

1 created joinder and are working in concert.

2
3 From our point of view, we stand on one side as parents whose child was not critically ill
4 until moments before we left for the hospital. On the other side standing in opposition to
5 us, we have a concert of medical professionals, prosecutors, and police who have been
6 evidenced to perjure themselves from our opinion, malign against us, and pervert the course
7 of justice to save face and deflect from the responsibility that should be on Alberta Health
8 Services.
9
10 Once again, a very clear-cut case. You either have the equipment in the ambulance or you
11 don't. It was identified that they didn’t. They didn’t replace it until one week after the
12 passing of my son. That's what it took for them to actually take it seriously.
13
14 Rowbotham and Fisher applications only served to chew up taxpayers' money while failing
15 significantly or falling significantly short of providing adequate remedy to overcoming the
16 issues of corruption surrounding this case. The only reasonable alternative is to provide us
17 with funding that is adequate to offset misconduct created by the collusion between the
18 various parties as well as paying for the previous trials or trial that was no fault of our own.
19
20 So, R. v. Curragh is what we are arguing and is the closest to our case. With that being
21 said, our case is unique and the gross amount of misconduct and bias that was leveraged
22 against us and reasonably will be leveraged against us in the future trial. And so I want to
23 cite from R. v. Curragh in the -- sorry, my apologies here. The elements of the case law
24 appendix there page 35 starting at the top and just --
25
26 THE COURT: Page 35 of ...
27
28 THE ACCUSED D. STEPHAN: Page 35 of the appendix, of the arguments brief
29 with the case law.
30
31 THE COURT: So, it starts at paragraph 126 of the case?
32
33 THE ACCUSED D. STEPHAN: That is correct, Sir.
34
35 THE COURT: Yes.
36
37 THE ACCUSED D. STEPHAN: (as read)
38
39 The Crown has neither acknowledged its errors -- [I'm sorry, 126.
40 My apologies] -- the Crown has neither acknowledged its errors
41 during the first trial, nor provided any assurance that a second trial
 43

1 will be conducted any differently. Instead, the Crown spent a great

2 deal of its submissions attacking the material -- the materiality of
3 the six examples of nondisclosure cited by the trial judge. The
4 Crown says nothing about the rest of the “mountain” of
5 nondisclosures.
6
7 This is part of the decision. And I'm looking at this and I mean this is the same exact issue
8 that we′re running up against right now. Going on to 127: (as read)
9
10 How else could this Court express its disapproval of the Crown’s
11 conduct in this case other than by endorsing the stay of
12 proceedings?
13
14 And we are asking for a stay of proceedings in the application until we can get all of our
15 legal counsel in order pending an award that would allow for us to acquire legal counsel.
16
17 Moving on: (as read)
18
19 The appellants have been charged and prosecuted for almost five
20 years [in our case it's been six.] There is no certainty that the full
21 disclosure the appellants were entitled to before plea has even now
22 been made or, indeed, can ever be made.
23
24 That statement hits home pretty hard for us: (as read)
25
26 The Crown decided as is its right to proceed by direct indictment
27 on these serious charges and deprived the appellants of a
28 preliminary hearing. The Crown ignored its duty to disclose and
29 to act in a manner consistent with the presumption of innocence
30 that belongs to all accused. This has, on the findings of the trial
31 judge, impaired the conduct of the defence and derogated from the
32 right to a fair trial. Ordering a new trial would itself bring the
33 administration of justice into disrepute.
34
35 And it is my opinion based on what I've seen regarding the media, regarding the resentment
36 that is out and about on both sides depending on what side of the argument you -- you fall
37 on, depending on whether you're -- you're believing -- I'll just say the -- the Crown's very
38 myopic and -- and tainted reporting the case or, if people are willing to actually look deeper
39 and examine, this case unfortunately has brought the administration of justice into disrepute
40 and will continue to do so as it moves forward: (as read)
41
 44

1 If this is not the clearest of cases, it is hard to imagine what would

2 qualify.
3
4 Now, this is in R. v. Curragh where the issues were significantly less than what we′re
5 alleging the issues to be on our case. We would restore the order of Anderson J., and award
6 the appellants solicitor/client costs throughout.
7
8 And that is the mainstay of our argument is R. v. Curragh that these costs can be awarded
9 through criminal proceedings - not on the civil side - and then further to that, just to -- to
10 end my submissions is that even if there hadn't been any of these issues that I just laid out
11 in regard to the RCMP, prosecutorial and judicial misconduct in the past trial, it is my
12 opinion that it would go against the fundamental principles of justice for the Court to not
13 provide remedy for the injury that was inflicted by way of errors in law from the past trial
14 that were identified by the Supreme Court of Canada, errors in law that have ultimately
15 resulted in financial hardship to the accused - ourselves - as we′ve been left to foot the bill
16 for an overturned trial that was no fault of our own.
17
18 Just that point alone it is our position that it is extremely unjust for us to have to foot the
19 bill for a trial that we′re now back at square 1 again having to pay the bills all over again,
20 but this time in a -- in a far greater way. There's 3,500 pages of transcripts that would have
21 to be reviewed by -- by a lawyer that wasn’t part of the trial last time. There is so much
22 more to this case and yet, we′re left with the bill from the last case and we′re back at square
23 1. That alone in my opinion goes against the fundamental principles of justice.
24
25 And respectfully, Sir, those are my submissions.
26
27 THE COURT: Okay. Thank you.
28
29 THE ACCUSED D. STEPHAN: Thank you.
30
31 THE COURT: We are going to take a break for 15 minutes and
32 when we come back, the Crown can respond to any of the arguments that are necessary to
33 be responded to. There may not be that many that are necessary to be responded to in light
34 of my comments. I would be interested in hearing the Crown's arguments with respect to
35 Curragh as I understand that those were matters of disclosure and misconduct that were
36 raised on appeal from the previous trial in Curragh and dealt with as the trial went up on
37 appeal. They were not raised in the beginning of a new trial in the same factual basis. These
38 matters weren't raised by these accused or if they were raised, they weren't dealt with by
39 the Court which was potentially open to the accused and the Court to deal with as Curragh
40 did and therefore, there are no findings on this Court at this time to make those submissions.
41
 45

1 So, if I've got that wrong, or if I've got anything else wrong that you've heard me say today
2 or hint at, I'd like to hear it, but other than that, I may not need to hear you much.
3
4 So, we'll come back at quarter to 12 and we'll hear you.
5
6 THE COURT CLERK: Order in court, all rise.
7
8 (ADJOURNMENT)
9
10 THE COURT CLERK: Order in court, all rise.
11
12 THE COURT: Please be seated.
13
14 Counsel for the Crown, Ms. Kristensen, my question to you more specifically having
15 regard to my role in the new trial as case management justice appointed under 551.1 to
16 replace Justice Hughes, is there anything in the application filed by Mr. and Ms. Stephan
17 on December the 4th for which the Court has jurisdiction in that role to exercise any of the
18 relief claimed or, if it does have jurisdiction, should it exercise relief or should this matter
19 go to a civil trial? That's really my question.
20
21 MS. KRISTENSEN: Sir, I'll try answering that question, then I have
22 some points in response to Mr. Stephan's submissions and then I'll get to the Curragh case
23 afterwards.
24
25 THE COURT: Okay.
26
27 Submissions by Ms. Kristensen (Costs)
28
29 MS. KRISTENSEN: In terms of jurisdiction, the -- there's some
30 confusion in the notice of application in terms of what is being asked for and the manner
31 in which it's being asked for and for this Court to have jurisdiction, it would have to be any
32 kind of award of costs -- I'll use the term "costs" -- for any kind of payment of money, but
33 any kind of costs award would have to be either pursuant to the Charter or pursuant to the
34 Court's inherent jurisdiction to award the same.
35
36 It would be the Crown's position that as the case management judge, you can hear pre-trial
37 Charter applications and --
38
39 THE COURT: And I intend to.
40
41 MS. KRISTENSEN: Correct, and that a costs application brought
 46

1 under the Charter would qualify as such and so you would have jurisdiction to hear a
2 Charter costs application.
3
4 I'll just flag for the moment also, the Crown --
5
6 THE COURT: So, let me just understand you. So, you say -- and
7 I don’t disagree with you, I have jurisdiction to hear Charter applications.
8
9 MS. KRISTENSEN: Yes.
10
11 THE COURT: And if in the course of hearing those applications
12 I find that there's a Charter breach relevant to the new trial and the evidence that would be
13 presented or might otherwise be presented at the new trial I have jurisdiction to award costs
14 in that context?
15
16 MS. KRISTENSEN: Yes, with the caveat that a Charter award of
17 costs against the Crown can only be made as a result of Crown misconduct.
18
19 THE COURT: Yes, when we get to that, but it's going forward.
20 I'm trying to have you address the jurisdiction with respect to past allegations that aren't
21 Charter breaches, all the things that Mr. Stephan has raised about Crown lying and the
22 Crown being guilty and RCMP being guilty of conspiracy and all of those things.
23
24 MS. KRISTENSEN: And in terms of -- I guess I dealt with them in a
25 different way because it's the Crown's submission that's not what the Court and what the
26 case law considers as Crown misconduct.
27
28 THE COURT: Yes. Go ahead. I don’t want to get into the
29 merits. I'm talking about the jurisdiction. So, I'll leave it to you to try and be helpful because
30 you haven't been so far.
31
32 MS. KRISTENSEN: It appears from the Curragh case --
33
34 THE COURT: Sorry?
35
36 MS. KRISTENSEN: Well, I guess what the Court's point is that the
37 Curragh case is an appeal of the original award of costs as opposed to a subsequent case,
38 but it's just a later proceeding.
39
40 THE COURT: Well., I'll just let you tell me what you're going
41 to tell me because you're not helping me much, frankly.
 47

1
2 MS. KRISTENSEN: The -- my submissions with respect -- I get the
3 Court's point. It's not one that I came prepared to address. It was -- I understood that this
4 Court as the case management justice could review a cost application under the Charter
5 and under the inherent jurisdiction of the Court as the trial justice, but that the ...
6
7 THE COURT: Well, I'm not the trial justice. I'm the case
8 management justice.
9
10 MS. KRISTENSEN: It is -- as a pre-trial application I think you have
11 jurisdiction to hear the same.
12
13 THE COURT: kay, but not -- well, go ahead. I'm not getting any
14 help, so I'll just let you finish.
15
16 MS. KRISTENSEN: With respect, my next comments would be in
17 relation to some points raised by Mr. Stephan. And a very -- when Mr. Stephan refers to
18 the McNeil case and the fact that the Crown and the police are indivisible for the purpose
19 of disclosure, that is to say whatever the police have, it's assumed that the Crown also has
20 that information and it's subject to disclosure, I don’t disagree with that, but it is
21 misinterpreted in Mr. Stephan's application because I think he goes from there to say any
22 misconduct by the police can be attributed to the Crown or the Crown and the police are
23 joined on any kind of misconduct and so, costs could be awarded for misconduct of the
24 Crown even if we′re just talking about misconduct of the police.
25
26 That is a misapplication of the principles that do come out of the McNeil case and in I
27 believe it's the Crown case of Branton that was included in the materials, the Court does
28 flag that that -- and I had -- I can advise the Court of the paragraph, but I had indicated it
29 in my submissions. It's paragraph 41 where there's misconduct, Charter misconduct, on the
30 part of the police, that is a civil head of damage and not something that can be pursued as
31 a costs application against the Crown in the context of a Charter application.
32
33 THE COURT: So, tell me -- take me to where you said that.
34
35 MS. KRISTENSEN: The case law, Sir?
36
37 THE COURT: No, no, just -- I want a reference. You said
38 paragraph 41. Paragraph 41 of what?
39
40 MS. KRISTENSEN: Paragraph 41 of the Branton decision of the
41 Ontario Court of Appeal which is included at tab 3 of my submissions.
 48

1
2 THE COURT: Yes.
3
4 MS. KRISTENSEN: In that particular case, costs were being sought in
5 a criminal context as a result of conduct of a policing agency and the Court ruled that costs
6 couldn't be awarded in that criminal conduct -- in that criminal case under the Charter
7 because the misconduct was that of the police and not the Crown. And so I rely on that to
8 indicate there is a divisibility when it comes to misconduct and misconduct for which costs
9 will be awarded under the Charter.
10
11 And it's the Crown's submission that when you recognize that division, that is to say
12 between the litigation conduct of the Crown and other agencies that might be involved or
13 called upon in the investigation or in the prosecution, when you recognize that division and
14 you look just at the litigation conduct of the Crown, then so I am -- then as there is really
15 no litigation conduct in the new trial at this point, I am looking at the past conduct of the
16 Crown in that there is nothing that amounts to Crown misconduct.
17
18 In the affidavits filed there was some indication of inappropriate laughter,
19 unprofessionalism by the Crown in the courtroom, but that does not amount to the kind of
20 misconduct courts have imposed costs for. Rather, if I kind of digress for a second just
21 following on Branton when they talk about Charter breaches by state -- or, sorry, policing
22 agencies in the course of investigations, the defence Mr. Stephan included a series of cases
23 in his materials: Ward, Carr, Almardy, Ogiami (phonetic), and all of which were cases
24 where there was some misconduct, Charter breaches found by the State, damages were
25 awarded, but all of that was in the civil context, not in a Charter context.
26
27 Sorry, there's a Charter head of damages, but the award for that is in a civil context.
28
29 THE COURT: Not a criminal trial.
30
31 MS. KRISTENSEN: And it's not against the Crown. There's even a
32 comment in the Almardy case that damages for this type of Charter breach can only be
33 awarded against police services boards.
34
35 Sir, another comment with respect to alleged Crown misconduct, there was some
36 suggestion that the prior -- in the prior prosecution the prosecutor led witnesses away from
37 evidence that would have been relevant to the defence. It is of course open to in any trial
38 proceeding the person doing the examination in chief to lead a witness or focus on certain
39 things and the cross-examination can pull out other evidence, evidence that might have
40 been missed, overlooked, or not touched on by the examination in chief and of course,
41 additionally, if that's insufficient for the purposes of getting at the truth in a trial process,
 49

1 it's open to the defence to call further evidence on that particular issue and so, I say that all
2 of that when the allegation is made that Mr. Giles misled the Court for exercising some
3 kind of misconduct in not focusing on potassium, that's really taken completely out of
4 context and misconstrues the trial process. It's not a form of misconduct on the part of the
5 litigant.
6
7 Sir, I'll then -- those would be my submissions with respect to any application for costs
8 under the Charter and I would touch on the Curragh case which deals with the Court's
9 inherent jurisdiction to award costs.
10
11 I -- the very last -- or towards the end of Mr. Stephan's submissions he read from the last
12 paragraph of the Curragh decision. It's an interesting decision. It's also a decision in more
13 than one part in the sense that there is the majority reasons and then there are dissenting
14 reasons.
15
16 And in part, Mr. Stephan read from the dissenting reasons where the Court imposed a stay
17 of proceedings. But the whole case is interesting and I would suggest you have to read it
18 together and maybe even read the trial judge decisions to get an idea of the level of
19 misconduct that is being dealt with in the Curragh case.
20
21 And so I will also refer to the dissent decision because it gives a little bit more colour in
22 terms of the wrongdoing that was alleged at the trial process and the decisions that I passed
23 up are the trial and Court of Appeal decisions and I'll touch on those briefly as well.
24
25 THE COURT: Passed up when?
26
27 MS. KRISTENSEN: I think madam clerk has one copy. I passed two
28 copies to madam clerk. They may still be sitting beside her.
29
30 THE COURT: Well, I didn’t get them, so ...
31
32 MS. KRISTENSEN: So, I'll turn first to the Supreme Court decision
33 which is included in Mr. Stephan's materials. And at paragraph 121 -- so I'm in the
34 dissenting reasons for judgment.
35
36 THE COURT: Let me just get there. Sorry.
37
38 MS. KRISTENSEN: Certainly.
39
40 THE COURT: His materials. He's numbered the pages at the top
41 right?
 50

1
2 MS. KRISTENSEN: Yes, I apologize. I didn’t ...
3
4
5 THE COURT: What page of his material?
6
7 MS. KRISTENSEN: Paragraph 121 of the decision and I'm just -- it's
8 page 33 on the numbering. There --
9
10 THE COURT: Just a minute. Let me get there.
11
12 MS. KRISTENSEN: I apologize.
13
14 THE COURT: So, paragraph 121 of the case.
15
16 MS. KRISTENSEN: And again, this is from dissenting reasons, but
17 the Court indicates: (as read)
18
19 Through the proceedings the Crown bent and broke rules, and
20 attempted to cover up when it was caught. The Crown actively
21 misled the court, on a number of occasions. The Crown ignored or
22 failed to comply with court orders. It is unnecessary to repeat the
23 litany of abuses that have already been described. The entire
24 proceedings were tainted by prosecutors who were playing to an
25 enraged public, and playing to win. This is apparent and can be
26 seen from the internal memo between prosecutors.
27
28 And to flesh that out even more, I pulled out the trial decision of Curragh and the Court
29 has that before you. I may have passed up my own copy of the same, but I would invite the
30 Court to turn to page 9 paragraph 40.
31
32 THE COURT: I have it.
33
34 MS. KRISTENSEN: (as read)
35
36 On February 1st the Crown disclosed 17 new files of
37 disclosure which they represented had been in their possession for
38 at least two years and about which they made a decision there
39 would be no disclosure.
40
41 And then dropping to the next paragraph: (as read)
 51

1
2 On the second day of trial, the Court ordered the Crown to provide
3 police officers' notes which were in their possession -- which were
4 in the possession of the investigating officers and which and not
5 been disclosed to the defence. A banker's box of files pursuant to
6 this order was delivered shortly thereafter.
7
8 On the seventh day of trial the Court ordered the primary investigation files be moved. And
9 then on day 11, paragraph 44: (as read)
10
11 The Court ordered the Crown to give at least five days’ notice of
12 the exhibits which would be put to witnesses; notwithstanding the
13 order, the problem continued almost unabated up to and including
14 the last witness examined by the Crown on May the 9th and was
15 compounded by difficulties in obtaining copies of exhibits which
16 had not been previously disclosed.
17
18 And at the trial level, the Court makes an order for $150,000 in costs to be awarded against
19 the Crown. That goes up to the Court of Appeal and then the Supreme Court and the
20 majority reasons don’t award costs under the Charter but rather under the inherent
21 jurisdiction of the Court and they rely on the fact of the apprehension of bias of the trial
22 judge, the fact that he refused to recuse himself, and then the fact that the accused are facing
23 a new trial as a result of the issues with respect to the trial judge at the initial proceedings
24 and an award is made that they could recover their reasonable costs for past and future.
25
26 The case is highly unusual. The case was also an exceptional case coming out of that
27 jurisdiction with respect to the fact that there were 26 people that had died in a mine
28 accident but also in respect of the issues that arose at the original trial. There were
29 disclosure issues which the Supreme Court doesn't touch on so much in the majority
30 reasons but there's this issue with respect to the conduct of the trial judge.
31
32 The --
33
34 THE COURT: But there were findings of the conduct of the trial
35 judge in the Supreme Court as part of the appeal process?
36
37 MS. KRISTENSEN: Correct.
38
39 THE COURT: The decision of Anderson J. went to the Court of
40 Appeal and then went to the Supreme Court of Canada and it's in that appeal process that
41 there were findings by the Court of Appeal and/or the Supreme Court of Canada of
 52

1 misconduct.
2
3 MS. KRISTENSEN: Yes.
4
5 THE COURT: The answer's yes?
6
7 MS. KRISTENSEN: Yes.
8
9 THE COURT: Okay. That's not present here.
10
11 MS. KRISTENSEN: Correct. What -- and I would then turn to the case
12 of our Court of Appeal of Griffin which is at tab 6 of my materials. That takes place after
13 the Curragh decision and gives a little bit more guidance in terms of what is the Court to
14 think or how is the Court to interpret rare, unique, never-to-be-seen-again circumstances
15 because the Supreme Court when they award costs in Curragh are satisfied that in that
16 case, this is highly unusual and they're relying on what happened with respect to the trial
17 judge.
18
19 But it's not a case -- what we have is I would suggest a standard in an appeal situation or
20 can be standard in an appeal situation. The trial takes place, the Court of Appeal -- at the
21 Court of Appeal there's a difference of opinion about whether or not the trial judge made
22 an error in law and the Supreme Court finds that that the trial judge did in fact make an
23 error in law and orders a new trial.
24
25 The litigant used the proper courses of appeal and they obtained the remedy of a new trial
26 and there's nothing exceptional about that. That is what hap -- that's sort of how our courts
27 are -- the checks and balances built into our court system, they were made available to the
28 accused. They used them and got the result they wanted in terms of overturning of the
29 original trial result.
30
31 I would suggest to label that situation as rare, unique, and exceptional would make any
32 kind of appeal where there's a change of decision by a higher court, one in which costs
33 could be awarded. And I think that the Griffin case by our Court of Appeal, the situation is
34 not the same, but they're still speaking to the applicant of that test in terms of what is rare
35 and unusual.
36
37 In the case of Griffin, the trial judge had made an award of costs as a result of the manner
38 in which the police had obtained a search warrant or production order. They had used some
39 privileged information in the course of obtaining the same and the -- when the Court was
40 considering an award of costs, they found this to be a rare and highly unusual circumstance
41 and one in which costs should be awarded under the Court's inherent jurisdiction.
 53

1
2 The Court of Appeal when looking at this case again said -- and I would refer the Court to
3 the discussion between paragraphs 34 and 40, but in paragraph 40 the Court says: (as read)
4
5 It is important not to approve too broad a view of what constitutes
6 unique or exceptional circumstances or costs will quickly run afoul
7 of the general principle that their availability in criminal cases are
8 rare and exceptional.
9
10 It is the Crown's submission that while words such as some form of conspiracy or attempt
11 to cover up or mislead the Court are suggested, some attempts to -- by health agencies to
12 fail to disclose or not disclose information within their possession, there's many
13 suggestions of wrongdoing on the part of the appellants in their affidavit and in their
14 submissions but there is not any proof of the same. It's a form of fanciful speculation I
15 would suggest and ultimately, what you're left with is a case where there's been an appeal
16 - a successful appeal - by the appellants. There's to be a retrial and a situation that is not
17 rare and exceptional and costs shouldn't be awarded.
18
19 Those are my submissions subject to questions from the Court.
20
21 THE COURT: Editorial Note: This Decision and Reasons have
22 been edited in accordance with the practice of the Court. Added words are put in
23 parenthesis [ ].
24
25 Decision
26
27 THE COURT: Thank you. Okay. Mr. Stephan, I don’t need to
28 hear you in response and I'm prepared to give a decision now.
29
30 In giving this brief decision, I reserve the right to edit the transcript of the decision {if it is
31 transcribed, as I presume it) will be and I further reserve the right to give further reasons
32 on any matter that I should wish to provide by way of elaboration to deal with this matter.
33
34 I will give the bare decision and then I will give the reasons.
35
36 The application filed on December 4, 2018 by Mr. and Ms. Stephan, seeking a number of
37 items of relief that are not particularly numbered, but go for about half-a-dozen or more
38 paragraphs, is dismissed, not on the basis of the merit of the arguments but on the basis of
39 the procedure in place. That means there may be another forum and there may be another
40 time where they can seek the remedy they do seek but not in the context of a hearing in
41 which we are at today.
 54

1
2 As is apparent on the record, [under s. 551.1 C.C.] and as I explained, today we are in a
3 case management hearing where I, as the case management justice for a [criminal] retrial,
4 have jurisdiction to make decisions on voir dires relating to the new trial and relevant to
5 the new trial. I do not, in this context, have jurisdiction to deal with arguments that relate
6 to the last trial and costs flowing from the last trial.
7
8 Different from a number of the cases that have been referred to, there has been no [Court]
9 findings [of fact] to support the allegations. No Court has found that there has been
10 misconduct. No Court has found at this stage that there has been failure to produce relevant
11 disclosure. And some of the other cases where costs have been awarded, albeit unusual,
12 there has been such findings as the cases wended up to the Court of Appeal or the Supreme
13 Court of Canada.
14
15 The proceedings that I am involved in are not for the purposes of investigating or hearing
16 evidence with respect to the allegations made or making determinations relating to the
17 alleged misconduct of people involved in and leading up to the verdict in the first trial.
18
19 That is not the case before the Court today and that is not the procedure. The procedure
20 that may be open to the Accuseds (Applicants), if they want to pursue that past conduct, as
21 alleged, is to bring a civil claim against the parties that they allege have breached the law,
22 and a Justice of our Court would have the jurisdiction to determine whether there have been
23 breaches and whether, in that context, costs or compensation or damages should be
24 allowed.
25
26 I am not making, and have not made, any findings on the substance of the allegations and
27 I will not be entertaining any evidence on the substance of the allegations. Insofar as there
28 are issues in the new trial that relate to some of the things that happened in the old trial, I
29 will have to consider the interrelationship. So, by way of example only, if Mr. and Ms.
30 Stephan say, "Well, the [Crown] did not provide this disclosure that was in the hands of
31 the police or in the hands of some third party," then an application can be made for that
32 disclosure involving the Crown, if it is in the hands of the police, or third-party disclosure
33 involving what I call an O'Connor or Mills application.
34
35 The fact that it was not [or not have been] provided before is of no relevance to me going
36 forward. If it is relevant and material evidence for the new trial, I will order that it be
37 provided. The fact that it was not [provided] before is only [relevant] to show that it exists
38 and it was not there. If they ask for it, then fine.
39
40 There may be -- and I do not want to foreclose the possibility -- some context in which
41 some future application or Charter breach or other voir dire causes the Court to issue an
 55

1 award of costs going forward; it will not be going backward, in these proceedings.
2
3 I will not go through each of the arguments made by Mr. Stephan, either in writing, or
4 implicit or explicit in affidavits, or to go through each of the issues raised. Most of those
5 are issues could be a basis for a trial in a civil context it appears and a Court could rule and
6 provide a remedy. The Court has broad jurisdiction to provide remedies.
7
8 The only matter that I am dealing with is [that] this is not the right procedure to do that
9 and therefore, on that context, the application is dismissed, I say it in "that context" because
10 I am not making any findings, as I have said more than once, on the merits and so if the
11 Applicants want to follow the proper procedure and sue the police or somebody else for
12 damages, including damages under the Charter, they have the right to try and do that. I am
13 not making any rulings on that, it is just not happening in this proceeding.
14
15 There have been no findings with respect to these allegations of wrongdoing. They are
16 mere allegations. In some of the cases R. v. Curragh, [1997] A S.C.R. 537, [on appeal
17 from and upholding 1995, 44 C.R. (4th) 214 (N.S.S.A) ]is one of them - where there are
18 findings leading up through the appeal process, of misconduct in where there are those
19 [judicial] findings, the Court clearly has jurisdiction and so if for example, in this case
20 based on the first trial, there were allegations brought forward at that time of misconduct
21 either by the Crown or by the prosecutor, by the police, in some appropriate fashion and
22 there was a [judicial] finding in that process, that Court had an ability in the right case -
23 Curragh being one of them - to award damages or costs and it did.
24
25 Those arguments were not pursued in the appeals coming through the first trial in this case,
26 [to the Alberta Court of Appeal, or] the Supreme Court of Canada, to my knowledge. The
27 remedies sought [there] were for misinstruction, that was found by a dissent in the Court
28 of Appeal and in the Supreme Court, [and that] resulted in a new trial and that was the
29 order and that was the remedy that was sought and that was the remedy that was granted.
30 Had there been arguments of misconduct, and had the Court been in a position to find
31 misconduct, the Court could have granted costs.
32
33 If there is misconduct going forward in this new trial, the trial judge may have jurisdiction
34 to award costs but not on the basis of past conduct but on the basis of conduct relevant to
35 the matters before the Court at that time.
36
37 Now, I have got to make a distinction here. The evidence that will come forward in the
38 new trial goes back to things that happened from the time that the authorities were called
39 regarding the health of Ezekiel until the trial started, but certainly up until after the autopsy,
40 and those are matters that will be coming forward presumably in a new trial. Within those
41 matters are matters of disclosure, matters of potential Charter breach, and matters which
 56

1 may properly be brought before the Court in February on whether the evidence is
2 admissible.
3
4 In the arguments, I used the example of the statements obtained by the RCMP from the
5 Accused, Mr. Stephan. If there was a Charter breach with respect to obtaining that
6 information and the Crown wants to bring it in, or have it admissible, we will deal with
7 that. If they do not, we do not need to.
8
9 [In this proceeding,] it is not an investigation of conduct; it is an investigation of the ability
10 to bring forward evidence that is not the subject of a Charter breach to prove the allegations
11 that the Crown must prove beyond a reasonable doubt in the new trial.
12
13 So, I am not going to go through each and every example of things argued. If Mr. and/or
14 Ms. Stephan want to pursue that at the risk of costs that follow in a civil case, they can
15 bring a statement of claim to do that. I will not be ruling on it in this case. This is not the
16 procedure to do it and therefore, in a procedural context, the application is dismissed.
17
18 I presume that the Crown is not seeking costs?
19
20 MS. KRISTENSEN: No, Sir.
21
22 THE COURT: Okay. So, we are concluded of this application
23 and we then will proceed in February on the date set in Lethbridge to deal with voir dire
24 issues that have been raised and those that are properly raised. I have not focused on those.
25 I have seen the proposed Dwernychuk Notice that has been filed by the accuseds. I have
26 scanned it quickly and made no particular comments on it.
27
28 I am prepared this afternoon when we -- and we have time to come back at about 3:15 to
29 hear counsel and Mr. Stephan with respect to anything we need to do to set up that date
30 now we are all here in the same place.
31
32 One of the things that comes to mind for example is, and there may communications
33 between the Crown and Mr. Stephan, that I have no subject of and what could quite
34 properly be of a list of things that Mr. Stephan would want to have the Crown provide or
35 the Crown to advise as to whether it has those things and I am thinking in the context of
36 disclosure. Is there further disclosure in the hands of Crown that Mr. Stephan has identified
37 that you have not provided that he wants? We can give you a list.
38
39 If there is further disclosure of parties that you do not have control of and are properly
40 identified as third parties, you can tell them there are third parties. That information will
41 be in the hands of party X or maybe in the hands of party X. It is not in the hands of Crown,
 57

1 we have no control over that, and that he can bring an O'Connor/Mills application as part
2 of that process.
3
4 I did not look carefully to see whether he has done so, but there is no reason why there
5 cannot be communication between the Crown and the accuseds with respect to that
6 disclosure. I do not need to see it at this stage as it goes, and I don’t want to be the party to
7 correspond between the two unless it is a basis for a future application.
8
9 But there are a certain amount of things that we can often work out by consent and without
10 a formal application. So, if Mr. Stephan says I need A, B, and C, and D from the RCMP,
11 then presumably, Ms. Kristensen will make that happen. If they say we need D, E, and F,
12 and G from some third party, Ms. Kristensen may facilitate that by making connections
13 and saying to that third party or to have them provide it voluntarily without going through
14 a formal O'Connor or Mills application.
15
16 So, I use that as an example. There may be other things that we need to discuss that are
17 pertinent to the hearing in February that we should talk about today, not wait until then, so
18 I am prepared to entertain those matters at 3:15.
19
20 MS. KRISTENSEN: And, Sir, I can advise there was correspondence
21 back and forth about (INDISCERNIBLE) exactly the manner in which you state. And
22 additionally, there was a letter sent to you yesterday with respect to three items that perhaps
23 we could touch on before the February date. I'm not sure --
24
25 THE COURT: Yes, and is that letter from your office?
26
27 MS. KRISTENSEN: It is, Sir. I believe it was dropped off on your
28 floor along with an affidavit. I can --
29
30 THE COURT: So, is that the letter of January 17th?
31
32 MS. KRISTENSEN: That's right.
33
34 THE COURT: Okay. And you ask that certain paragraphs be
35 struck with the Charter notice in item 1?
36
37 MS. KRISTENSEN: Yes, Sir.
38
39 THE COURT: And you wish to give notice of an application
40 before we meet in Lethbridge in February for other officers to testify by video link.
41
 58

1 MS. KRISTENSEN: Yes, Sir.

2
3 THE COURT: Okay. I have not -- I saw that, but I haven't
4 reviewed the material on it. It just came in yesterday and it wasn’t the focus of today's
5 application, so I could hear you with respect to that. And you haven't given Mr. Stephan
6 much notice on this, so if he needs more notice on any of those things, then we can
7 determine whether we can deal with it this afternoon or we'll set up a procedure whereby
8 he can provide appropriate arguments. Okay?
9
10 MS. KRISTENSEN: That was my point, Sir.
11
12 THE COURT: Yes, okay. So, between now and 3:15, Mr.
13 Stephan knows that the Crown wishes to pursue these applications. If he's in a position to
14 address some or all of them, then we'll deal with that. If he's not, then you may have some
15 discussions about when and how that might take place. You can have discussions off the
16 record regarding that.
17
18 The only other matter I want to deal with before we adjourn unless someone raises
19 something is Mr. Shewchuk has been here and he has addressed the matters of Rowbotham
20 and/or Fisher-type applications. There are many places on the record including the record
21 today where Mr. Stephan wisely or unwisely for whatever reason and he has expressed
22 some reasons for which I frankly don't care, he says he's not bringing such an application.
23
24 So, we don’t need to hear from you on that and we don’t need your further attendance until
25 such time if ever there is such an application. You filed a brief in anticipation there might
26 be - there isn't. So, we always like to have you present in our courts, but you're not
27 necessary in this case.
28
29 THE ACCUSED D. STEPHAN: My Lord, if I could just address one thing
30 briefly?
31
32 THE COURT: kay.
33
34 THE ACCUSED D. STEPHAN: And that is that in terms of -- of the application
35 that Ms. Stephan brought on December 4th --
36
37 THE COURT: Right.
38
39 THE ACCUSED D. STEPHAN: -- you mentioned that at the top of your oral
40 reasons here the various relief that they were asking for. And throughout their materials
41 they -- they tend to mix up funding for the defence team with costs and I'm just wondering
 59

1 whether in terms of your decision, Sir, in terms of their -- their request for funding whether
2 you're -- you're saying that because they never brought a proper application or a recognized
3 application for state-funded counsellor or state funding that there -- in essence, there was
4 no such application.
5
6 THE COURT: There is no such application going forward and
7 they made that very clear. They weren't looking for costs associated with the past
8 misconduct to the extent that they want to have a Rowbotham Application for funding to
9 hire counsel and/or experts, but counsel primarily; if that were an application before me
10 going forward, that certainly was in my jurisdiction. It would certainly be something I'd
11 deal with in Lethbridge in the February hearings, but they had made it clear that they
12 haven't brought such an application and they're not seeking such recovery. They are seeking
13 recovery from past alleged misdeeds as a basis for them to fund their own future defence
14 as I'm understanding it. So hopefully, we′re on the same wavelength.
15
16 THE ACCUSED D. STEPHAN: Well, just -- I think I understand what you're
17 saying about the not being an application.
18
19 The only thing I should say, My Lord, is just one thing to clarify about something that Mr.
20 Stephan had said in his submissions. That one of his concerns he raised about a
21 conventional state funding order is he was -- he said something to the effect of, well, I don't
22 want -- Alberta Justice would be administering the funds for me and I just don't think that's
23 proper or he had some concerns about it. And I just -- I just want to make clear that in the
24 affidavit that we filed from Mr. Ingersoll of Legal Aid, in a state-funded counsel
25 application, once the order goes from the Bench, the Attorney General takes that order and
26 sends it to Legal Aid. And the Attorney General and Alberta Justice has nothing further to
27 do with the decisions that are made by Legal Aid and that's clearly pointed out by Mr.
28 Ingersoll in his affidavit, especially with respect to high costs case, or lengthy cases, or a
29 complex case. There's an intricate system of management set up at Legal Aid, it has nothing
30 to do with Alberta Justice. The Government funds it, but it doesn't run it.
31
32 So if that's a concern --
33
34 THE COURT: Mr. Ingersoll was clear in his affidavit of my
35 reading, but I take it you're using this occasion to bring that to the attention of Mr. Stephan?
36 I mean, it's a matter that if there was an application, and if I did grant a Rowbotham
37 application to provide funding, we would cover that off. And you're saying even there,
38 there's no need to cover it off because there's no interrelationship?
39
40 MR. SHEWCHUK: No, it's true. It's, and again, for Mr. Stephan and
41 Mrs. Stephan to Mr. Ingersoll's affidavit about how the decisions are made there. It's a
 60

1 combination. In most cases, especially complex cases of administration people from Legal
2 Aid and in some cases experienced defence criminal lawyers who can -- who can help
3 make the decision about whether it should be funded or experts should be funded, et cetera.
4 So I just wanted to make that clear.
5
6 And, Sir, I also just say if I were to have made oral submissions to you, it was not my
7 intention to go back through my argument.
8
9 THE COURT: No.
10
11 MR. SHEWCHUK: It's on the record, it's been filed. As I've said, in
12 terms of, you know, they have not given us any financial information not show that they're
13 indigent so they didn't meet the burden of proof and they've not shown why a Legal Aid
14 lawyer would not be satisfactory.
15
16 So, those, and the fact that the Court doesn't have jurisdiction to order the Government to
17 pay just a lump sum of money, as I've said in my brief, that was all I was going to address.
18 So, I appreciate you hearing me now, Sir, but I just wanted to make that clear about where
19 you were coming from in terms of dismissing the order.
20
21 THE COURT: So we're on the same wavelength all three of us
22 by the sounds of it, and Ms. Stephan I presume is listening and has -- I presume Mr. Stephan
23 is acting on her behalf in this regard, there's no application, there's no intent to make the
24 application, and, therefore, I'm not making any rulings You're telling me that if there were
25 such an application on the material that's now presented to you, it's deficient because you
26 need further information.
27
28 MR. SHEWCHUK: Correct. And I should just say, Sir, on the record
29 as I've said in my argument, both in writing from Alberta Justice and in open court, the
30 Attorney General was prepared to concede the elements of a Rowbotham order save and
31 except for some evidence of them being indigent and not being able to pay. And they have
32 not brought that application, they haven't filed any material in that regard and so I think we
33 are on the same page, Sir. But I just wanted to make that clear, that that offer had been
34 made and was not taken up on. So, those would've been my submissions, in any event, very
35 briefly.
36
37 THE COURT: Yes. So I think at that point we'll then adjourn
38 until about 3:15 and we'll deal with the matters or the procedure for the matters related in
39 your letter, Ms. Kristensen, of yesterday. And if there are other procedural matters that we
40 need to address or find a mechanism to address before we get to the hearing in Lethbridge,
41 we'll do it. And I will use the time between now and then, in part, to review the material
 61

1 you've provided so I better understand those issues.

2
3 And Mr. Stephan can raise any procedural matters he wants to raise to make certain that
4 the hearings in Lethbridge are productive to make rulings on the things that the Court needs
5 to make rulings on.
6
7 MR. SHEWCHUK: And just one last thing, Sir, I apologize, I know
8 the Court's time is valuable today, I apologize for being improperly dressed this morning
9 when I arrived. I managed to get into robes. These are usually chamber applications and I
10 didn't realize that this was going --
11
12 THE COURT: Yes.
13
14 MR. SHEWCHUK: -- to be part of the criminal.
15
16 THE COURT: I understand that. But it's part of a criminal case
17 and so we're gowned in the criminal case, counsel are, and the exception to that is pretrial
18 conferences where counsel appear and parties appear. But this is a part of a case
19 management hearing in the context of a new trial and, therefore, we are gowned and we
20 will be in Lethbridge as well.
21
22 Are there any other matters before 3:15? Hearing none, we will adjourn until that time,
23 approximately.
24
25 THE ACCUSED D. STEPHAN: I apologize, Sir. I was standing up to make a
26 quick address if that's okay?
27
28 THE COURT: Well, sure.
29
30 THE ACCUSED D. STEPHAN: I was -- yeah. My apologies. I was just
31 wondering if I could seek leave of the Court for a stay of proceedings while I pursue an
32 appeal?
33
34 THE COURT: The short answer is no, you can seek it but you're
35 not getting it. In criminal procedures, the appeals come once a verdict is rendered. And so
36 if there are -- in criminal cases, the law is that if you've got issues in voir dire decisions or
37 other decisions, as the matter proceeds you save them up. If you're acquitted at the end of
38 the day, there may not be any need to pursue any of those. If you're found guilty, then you
39 can add those up with any other allegations you've got that deserve an appeal. That's
40 different than sometimes in a civil case where things go on layers.
41
 62

1 But I'm not giving you leave, I'm not suggesting you need leave. But the procedure is that
2 I doubt anyone is going to give you leave until the matter is over. So, if you're not happy
3 with it, stick it in the box that says to be argued maybe later on.
4
5 THE ACCUSED D. STEPHAN: Thank you, Sir.
6
7 THE COURT: Okay. We stand adjourned.
8
9 THE COURT CLERK: Order in court, all rise.
10 __________________________________________________________________________
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12 PROCEEDINGS ADJOURNED UNTIL 3:15 PM
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1 Certificate of Record
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3 I, Elena Kay, certify that this recording is the record made of the evidence in the
4 proceedings in the Court of Queen’s Bench, held in courtroom 1402, at Calgary, Alberta,
5 on the 18th day of January, 2019, and that I was the court official in charge of the sound-
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1 Certificate of Transcript
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3 I, Su Zaherie, certify that
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5 (a) I transcribed the record, which was recorded by a sound recording machine, to the best
6 of my skill and ability and the foregoing pages are a complete and accurate transcript
7 of the contents of the record and
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9 (b) the Certificate of record for these proceedings was included orally on the record and is
10 transcribed in this transcript.
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18 Order Number: AL-JO-1002-3502
19 Dated: January 29, 2019
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1 Proceedings taken in the Court of Queen's Bench of Alberta, Calgary Courts Centre,
2 Calgary, Alberta
3 _________________________________________________________________________
4
5 January 18, 2019 Afternoon Session
6
7 The Honourable Associate Court of Queen's Bench
8 Chief Justice Rooke of Alberta
9
10 B.C. Kristensen For the Crown
11 (No Counsel) For the Accused D. Stephan
12 (No Counsel)(by telephone) For the Accused C. Stephan
13 E. Kay Court Clerk
14 __________________________________________________________________________
15
16 Discussion
17
18 THE COURT CLERK: Order in court, all rise.
19
20 THE COURT: seated.
21
22 We're here to talk about some matters relevant to the voir dires that are going to be held in
23 Lethbridge in February. Ms. Kristensen, you said you wanted to raise some matters?
24
25 MS. KRISTENSEN: Sir, they're the ones that are in my letter to you
26 from yesterday's date, one that the Crown would like to strike -- make a motion to strike
27 certain paragraphs of the Charter notice; and (2) with respect to the -- one of the reasons
28 the voir dires were set initially is because the Crown intends to conduct a voluntariness
29 voir dire with respect to three statements given to police and one to a doctor. There's a
30 number of witnesses which will be called in the course of that voir dire and the Crown is
31 seeking to have several of them testify by video link.
32
33 My intention wasn't to pursue those today, but rather to flag for the Court that there's
34 probably some time that needs to be set aside before February --
35
36 THE COURT: Probably which? I'm sorry?
37
38 MS. KRISTENSEN: That there would be some time that needed to be
39 set aside before February 25th.
40
41 THE COURT: Okay. So you want -- your first application is to
 67

1 strike certain items of the Charter notice. Do you want to address me on that?
2
3 Submissions by Ms. Kristensen (Strike Items in Charter Notice)
4
5 MS. KRISTENSEN: Certainly, Sir. I'm just -- I just want to make sure
6 I have --
7
8 THE COURT: And I've looked at them. Is the so-called
9 Dwernychuk notice that was provided by Mr. and Mrs. Stephan filed January 15th and
10 there's a number of items on there, and then the grounds for those. There's 13 items and the
11 grounds for those items and you want 2 through 10 struck?
12
13 MS. KRISTENSEN: Yes, Sir. I apologize, I'm just trying to pull up
14 the September -- the one from the 15th. I have the one from the 14th before me, but I should
15 have the other one on my computer.
16
17 THE COURT: I don't know if I've seen the one from the 14th,
18 but I certainly have the one from the 15th.
19
20 MS. KRISTENSEN: Just so that we're dealing with the same -- I have
21 it now, it's just coming up.
22
23 Then, Sir, with respect to paragraph 2, the Court -- the accused seeking a declaration that
24 effectively -- the section of the Judicature Act be declared unconstitutional. It's the Crown's
25 position that has no relevance to any proceedings that are before this Court. It's just --
26 outside of these proceedings, the accused could apply for that type of declaration, but it
27 should not be conducted -- it is not a Charter motion that should be conducted within these
28 proceedings. It's moot within these proceedings.
29
30 THE COURT: I looked at it and I took it that it may have related
31 to the allegations in the application which I dismissed relating to Mr. Giles, who was the
32 Crown Prosecutor, and had that application proceeded he wanted to have an order that
33 would be against Mr. Giles. But that's all I perceived.
34
35 And so is that the case, Mr. Stephan?
36
37 THE ACCUSED D. STEPHAN: The case that, well, I apologize, I haven't given
38 much thought to the email. I guess I should put the Court on notice of that, that I have not
39 yet had a chance to really go into that in depth and take that into consideration. And so I'm
40 not in a position that I can really speak to all the elements surrounding that -- that Charter
41 application.
 68

1
2 THE COURT: Well, I ask you -- just asked you a question. Why
3 are you seeking it?
4
5 THE ACCUSED D. STEPHAN: We're seeking it because we do feel that it is
6 unconstitutional that an individual --
7
8 THE COURT: Well, that's what you think it is, but why do you
9 need that finding?
10
11 THE ACCUSED D. STEPHAN: Based on future proceedings in case we see a
12 repeat of what took place in the last trial, if it continues on, that we would be able to seek
13 appropriate remedy through the Courts and that there would be deterrence.
14
15 THE COURT: So it's an anticipatory motion?
16
17 THE ACCUSED D. STEPHAN: I think that would be fair to say.
18
19 THE COURT: Yes.
20
21 THE ACCUSED D. STEPHAN: Though I haven't fully considered all the
22 implications based on -- after the hearing today.
23
24 THE COURT: Well, I'm -- on things that need to take some
25 time, I'm prepared to give you time to argue.
26
27 THE ACCUSED D. STEPHAN: Yeah.
28
29 THE COURT: This isn't one of them.
30
31 THE ACCUSED D. STEPHAN: Okay.
32
33 THE COURT: You haven't demonstrated as to why you need it
34 that I saw in anything that was attached to your notice. On a quick read, in fairness. And it
35 may well relate to things like paragraph 48 of your material, but I've ruled that we're not
36 going to deal with that. That's my ruling this morning. And so if something comes up where
37 you want to bring some motion, I'm not saying you can't do it again, but I don't see any
38 basis for it now and I think you're -- Ms. Kristensen is right, that it doesn't seem to have
39 any current relevance to any proceeding before the Court.
40
41 THE ACCUSED D. STEPHAN: And it is my apologies, Sir. I was not anticipating
 69

1 on dealing with any of these matters today so I don't even have my notices before me. And
2 if I seem unprepared on the matter, it's, quite frankly, because I am.
3
4 THE COURT: Okay. I'll -- I'm going to strike it and I'll give you
5 leave to argue it further if you want to argue it at a later time. If there's some reason that
6 I've missed and something that you would want to tell me in the fulness time, but I see
7 nothing here that suggests any merit to it at this stage. So I'm going to strike it with leave
8 for you to reapply if you wish.
9
10 THE ACCUSED D. STEPHAN: Thank you, Sir.
11
12 THE COURT: Okay. And then number 3, that the trial be
13 dismissed with prejudice costs and punitive damages, well that's what I dealt with this
14 morning.
15
16 MS. KRISTENSEN: Yes, Sir.
17
18 THE COURT: Yes. So I don't need to hear you on that, that's
19 struck too, for the same reason as I had dealt with this morning.
20
21 MS. KRISTENSEN: With respect to paragraphs 4, 5, 6 --
22
23 THE COURT: And 7.
24
25 MS. KRISTENSEN: I'll skip 7 for a second. I might come back to it.
26 An order compelling a series of individuals outside of the Crown and the RCMP to provide
27 information and documentation. It's been discussed earlier this morning that's not -- first of
28 all, I'm not sure what information has been required, disclosure has been provided in
29 relation to -- all of the Crown disclosure has been provided at this point in time. And within
30 the Charter motion, we're assuming this would be an application that would be heard in
31 February, the Court -- these other parties outside of Mr. Giles and Ms. Weich who are the
32 previous Crowns, these parties would not be represented or would not have notice of any
33 application before the Court in February. It ties into the issue of disclosure in terms a
34 McNeil or O'Connor application, but I don't think it's properly in the Charter notice in
35 terms of asking the Court to compel the Crown to produce those things that are not within
36 the possession of the Crown.
37
38 THE COURT: Well, dealing with -- I don't disagree with you,
39 but dealing with 4, which is compelling Drs. Cunningham, Mr. Giles, Dr. Clarke, Ms.
40 Weich to provide any information and documentation regarding the potassium issue to the
41 defence, that is, as I see it, is a motion relating to any Crown disclosure of documentation.
 70

1 It's not very well put, to be frank, but Mr. Stephan and Ms. Stephan are lay self-represented
2 litigants. And so, as it relates to Giles and Weich, if there's further information that's in the
3 possession of the Crown with respect to the so-called potassium issue, and I appreciate
4 that's pretty (INDISCERNIBLE), then that seems to be an appropriate matter of disclosure.
5
6 With respect to Cunningham and Clarke, that seems to me to be something that could be
7 dealt with in February but it would require an application with some more specificity by
8 Mr. Stephan to ask Dr. Cunningham and Dr. Clarke, and maybe others, i.e. the hospitals
9 for which had records, for an O'Connor or Mills application.
10
11 So I'm not going to -- I don't need to hear you, Mr. Stephan, I'm not going to strike that one
12 but it needs to be particularized. So if you want it to be dealt with in February, then you
13 should particularize it with respect to Giles and Weich, and you should give notice and file
14 formal application before the Court and give notice to Dr. Cunningham and Dr. Clarke,
15 and anybody else that may have that information. It might be Alberta Health Services. I
16 don't know who's got it. You can start with Cunningham and Clarke, but if they say, no,
17 we don't have it, the hospital has it, then you're kind of scuppered as it were.
18
19 So, I'm not going to strike that, but you need to take some steps right away to give them
20 notice that you're bringing that application. And you might want to contact them directly
21 or through agents to find out who has the information you're seeking and you should
22 particularize it. I mean, it's pretty vague. If you want all of the -- any document that dealt
23 with, that deals with potassium as it relates to Ezekiel then, you know, you need to provide
24 details. So, I'm not going to strike that one.
25
26 With respect to the next one, it's a similar one. This is regarding all of the records that
27 anybody has it seems with respect to the time from, as I'm reading it, 0025 on the day in
28 question to 2:45, which is the time from which, I believe, the child was picked up until he
29 arrived at Children's Hospital. So, again, to me it's a poorly stated claim for O'Connor/Mills
30 application against third parties because all -- it relates to others - Chinook Hospital - so
31 that's a third-party record so, again, you have to give notice.
32
33 Anything further you want to say on that, Ms. Kristensen?
34
35 MS. KRISTENSEN: No, Sir. I think the Court has my point.
36
37 THE COURT: Yes. And then moving to 6, this deals with
38 documentation regarding the ambulance bay intubation and it involves, again, Dr.
39 Cunningham, Dr. Clarke. It also deals similar to number 4, deals with Giles and Weich.
40 And to the extent that the Crown has information, then that's something that's disclosure.
41 To the extent that Alberta Health Services, or the RN, or the doctors have, again, that's an
 71

1 O'Connor/Mills application. So, I wouldn't strike it but I think, again, Mr. Stephan, you
2 need to particularize it, you need to prepare an application, serve it on them to come to
3 court. You can serve it for them to come to court the first day of the hearings and to present
4 any records they have. If they are wiling to hand them over to you or copies of them over
5 to you, true copies, then there's no issue. They just do it. If there's an issue, then we'll talk
6 about it then.
7
8 Going to number 7: (as read)
9
10 An order compelling the Crown and other State agencies to
11 provide additional relevant documents, files, and information that
12 is currently being sought and has not yet been provided.
13
14 So that's what I was talking about earlier. If there are specific things that you want that you
15 haven't got, that you're aware of, that you believe exist, then you have to ask the Crown to
16 provide those if they have them. And, if not, to tell you who might have them. But I find
17 this pretty vague. I don't have a problem with the idea of it, but it's pretty vague. So you
18 need to write to the Crown, you don't need to copy me at this stage, but write to them and
19 say I want the following documents. You can make it inclusive, but I want all of the
20 relevant documents including the following. And we'll hear you on that. So, I'm not going
21 to strike that one at this stage.
22
23 THE ACCUSED D. STEPHAN: My apologies, real quick, did you say that I need
24 to copy you at this stage or don't?
25
26 THE COURT: No, do not.
27
28 THE ACCUSED D. STEPHAN: Okay.
29
30 THE COURT: Do not. But you may need to have a copy you
31 can file at court saying, you know, I wrote the Crown and I didn't get a response, or here's
32 the response I got which is not satisfactory, or whatever.
33
34 THE ACCUSED D. STEPHAN: Thank you.
35
36 THE COURT: Number 8, is: (as read)
37
38 We are seeking a ruling from the Court on the admissibility,
39 voluntariness, credibility and spoliation of all of the evidence
40 provided by the Crown and its investigative agencies regarding
41 this case.
 72

1
2 Well that's too generic. Didn't tell me anything. There's something specifically you want a
3 ruling on, you need to particularize it. So, I'm not going to strike it but I'm going to direct
4 you to particularize that with the Crown and provide a copy of that to the Court.
5
6 Now, number 9, is: (as read)
7
8 A flag or note, a declaration that it's deemed illegal for State
9 agencies within Canada where a flag or note can be entered and
10 retained and attached to a person's name.
11
12 I have no idea what you're talking about.
13
14 THE ACCUSED D. STEPHAN: It's in regard to the flag that has appeared
15 numerous times on our file throughout the disclosure regarding being affiliated, associated
16 with myself, my extended family, with the freeman movement, the sovereign citizen
17 movement, whatever it's categorized as, and that there's no due process in law at this time
18 that I'm aware of wherein these types of matters can be brought before a Court of competent
19 jurisdiction. And this flag could either be deemed properly relevant or irrelevant. But the
20 concern that we have is that for the State agencies that are getting these flags on the file, is
21 that right off the bat it would create a sense of prejudice or bias that would ultimately
22 impact the quality of the investigation and perhaps the entire outcome of the investigation
23 on whether or not matters end up before the Courts rightfully or not rightfully.
24
25 MS. KRISTENSEN: Sir, the request -- it's Crown's submission the
26 request for this type of declaration, it stands alone and has nothing to do with these criminal
27 proceedings and it should not be -- there's really no Charter application in relation to the
28 criminal prosecution. Crown is seeking to have that paragraph struck.
29
30 THE ACCUSED D. STEPHAN: And we do have further evidence that has not
31 been brought forward in regard to this -- this last application that we just heard this morning
32 that does substantiate that it is relevant in regard to the case that is before the Courts today.
33 We do have prima facie evidence that is, in our opinion, substantial in nature and we do
34 feel that it should move forward and be considered before the Courts.
35
36 THE COURT: Well, frankly, I don't care as it being relevant or
37 irrelevant. It's just not on the radar screen for this case. I mean, if they defamed you, then
38 you have an action against them in defamation, if they've called you something you're not,
39 you know, I guess we can deal with it at some point in time. But I don't think it's a Charter
40 application. And I think the best way to handle this is for you to provide, I'll reserve on
41 this, and you provide information that particularizes this. I don't even know it exists. You
 73

1 say there's a flag, I don't know what a flag means. If there's some notice or some words that
2 are used on a medical form to say that you are the devil in disguise or whatever, you know,
3 I'm not sure I'd take any, or any judicial member of the Court, would take any issue with
4 that whatever it says. It may be defamatory, but it's irrelevant, as far as I'm concerned. I
5 don't care what you are, as long as you follow the laws.
6
7 THE ACCUSED D. STEPHAN: Okay. And I can assure you, one, that I'm not the
8 devil in disguise.
9
10 THE COURT: Well, I'm being facetious to make the point.
11
12 THE ACCUSED D. STEPHAN: I know. My apologies, Sir. I couldn't help --
13
14 THE COURT: So, at the moment, I see no basis for it, but I'm
15 not going to strike it at this time. I'll give you an opportunity to provide within ten days
16 further evidence or information that supports it to your friend, Ms. Kristensen, and the
17 Court.
18
19 THE ACCUSED D. STEPHAN: So bring it forward to Ms. Kristensen and the
20 Court?
21
22 THE COURT: Yes.
23
24 THE ACCUSED D. STEPHAN: Within ten days.
25
26 THE COURT: Yes.
27
28 THE ACCUSED D. STEPHAN: Thank you, Sir.
29
30 THE COURT: To support that.
31
32 And then number 10 is: (as read)
33
34 An order in the absence of charges being laid against healthcare
35 professionals over the death of Ezekiel, that all charges against the
36 accused be dismissed with prejudice.
37
38 Well, I dealt with that this morning so it's not -- it's not a matter that's relevant for those
39 hearings in Lethbridge. So, I'm going to strike number 10 as well.
40
41 THE ACCUSED D. STEPHAN: And, my apology, number 10 was which one
 74

1 again? I don't have my notices before me.

2
3 THE COURT: (as read)
4
5 An order in the absence of charges being laid against healthcare
6 professionals over the death of Ezekiel Stephan, that all charges
7 against the accused be dismissed with prejudice.
8
9 I'm not in the position to order that and there's -- I know of no Charter right that requires
10 someone to bring charges against others because you perceive that they -- there should be
11 charges. So that one's struck.
12
13 Does that conclude your application?
14
15 MS. KRISTENSEN: Well, it's morphed a little bit, Sir. You've
16 indicated that there should be, with respect to number 9, particularizations within ten days;
17 and with respect to a number of other matters that there are also be particularization or
18 O'Connor/Mills applications, I wonder if the Court would impose a deadline for the filing
19 of those?
20
21 THE COURT: Is ten days enough for you to deal with those
22 notices? We're sitting here at February -- sorry, January 18th and these hearings take place
23 on February 25th. So, we've only got about a month and I think you need to give people
24 notice. If you give notice on the things that you require and they have them, pretty simple
25 for them just to say, yeah, here they are, or to say, no, we're going to oppose that on the
26 25th.
27
28 THE ACCUSED D. STEPHAN: Okay. I do know in preparation for that, that I
29 will have to get an affidavit from my -- another individual who's third party in order to help
30 substantiate it. And then in regard to presenting the other evidence, that shouldn't be too
31 much of an issue. So when you say ten days, are we talking ten business days? So we're
32 talking --
33
34 THE COURT: We talking about January 28th? I didn't look at
35 the date on the calendar, but ten days is ten days. I just have to look at my calendar here
36 for a minute. By the end of the -- the 28th of the month is a Monday. By the end of the
37 month, the 31st, is that sufficient time?
38
39 THE ACCUSED D. STEPHAN: Yeah.
40
41 THE COURT: If you want these dealt with, if you want this
 75

1 information, we've got hearings set in February to get it. So I want you to have the
2 information if you're entitled to it and if people are prepared to give it to you; if you're not
3 entitled to it, then they can come and argue about it.
4
5 THE ACCUSED D. STEPHAN: Yeah. Okay. Yeah. I'm just looking at my
6 schedule here in regard to work and everything. And so if there's any way that we can, you
7 know, push it to the 1st so we're looking at ten business days from now, would that --
8
9 THE COURT: The 1st is a Friday, that's fine.
10
11 THE ACCUSED D. STEPHAN: Okay. Thank you very much.
12
13 THE COURT: So all of those things for which I didn't strike and
14 for which you need new information, or a further application, that should be completed by
15 the 1st of February. But if you want to speak with Ms. Kristensen or communicate with her
16 by letter or email, I don't need to know about that with respect to this other information,
17 maybe you can work something out. You can get what you need. You seem to know what
18 you need but some of it's pretty vague.
19
20 THE ACCUSED D. STEPHAN: Okay.
21
22 THE COURT: So, I think that -- I'm hoping that my ruling is
23 clear enough that -- let me summarize it. If you have anything further to add, I'll hear you
24 now but ...
25
26 THE ACCUSED D. STEPHAN: Yeah. Just further clarification at this point I
27 believe is what I'd be looking for. And so, my apologies, so when I was talking about
28 February 1st, that's in regard to not only providing details regarding the application
29 surrounding a flag, but also a particularization, specification of the other ones that have not
30 been struck; is that correct?
31
32 THE COURT: Yes. So let me summarize for those.
33
34 Decision (Strike Items in Charter Notice)
35
36 THE COURT: I've struck number 2, I struck 3; with respect to
37 4, 5, and 6, and 7, you need to particularize any specific information you're seeking from
38 the Crown and you need to file a O'Connor/Mills application against third parties for any
39 other information you seek. And, again, needs to be particularized. So, saying to Dr.
40 Cunningham, I want a copy of all documents relating and touching on the issue of
41 potassium vis-à-vis Ezekiel, then that gives him some detail. But if you know more details,
 76

1 you can be more specific so that he knows that he's supposed to send those documents to
2 you or attend in court on the 25th of February to show why they shouldn't, or whoever has
3 them, to show why they shouldn't be produced.
4
5 THE ACCUSED D. STEPHAN: Okay. And so we would do that with all third
6 parties? We would --
7
8 THE COURT: All third parties, yes.
9
10 THE ACCUSED D. STEPHAN: By the 1st.
11
12 THE COURT: Yes.
13
14 THE ACCUSED D. STEPHAN: We would supply them with an O'Connor.
15
16 THE COURT: Yes. And, again, you may talk to Ms. Kristensen
17 and through the Crown find out maybe they know that the records on potassium will be
18 held by the hospital or be held by Alberta Health Services. I do not know that information.
19 And maybe you can work that out and see if you can get them. And if you can, that's great;
20 if you can't, then you better bring the applications returnable on the 25th for them to show
21 up and bring the documents and we'll have a discussion. There's a whole lot of law
22 regarding O'Connor and Mills. There's steps to go through and they may have a right to
23 protect some of that information. Not likely, frankly, but -- so that relates then to 4, 5, 6, 7.
24
25 Eight, I find too vague so I'm not going to -- I'm going to strike it unless you provide more
26 particulars on it.
27
28 THE ACCUSED D. STEPHAN: And that was the one pertaining to the flag; is that
29 correct?
30
31 THE COURT: No, that's 9 is the flag.
32
33 THE ACCUSED D. STEPHAN: Okay. And which one was 8 again?
34
35 THE COURT: Eight, it's a general ruling on the admissibility of
36 voluntariness, credibility, et cetera, of evidence provided by the Crown and its investigative
37 agencies. It's too vague. I can't deal with it so I'm going to strike it. But you have leave to
38 provide more particulars.
39
40 THE ACCUSED D. STEPHAN: Okay.
41
 77

1 THE COURT: And I've struck 10.

2
3 THE ACCUSED D. STEPHAN: And 10 was which one again?
4
5 THE COURT: And, again, that's in the absence of charges
6 against a healthcare professional over the death of Ezekiel, dismiss this charge.
7
8 THE ACCUSED D. STEPHAN: Okay. And that was where one of my questions
9 was going to lead, and perhaps I'm just viewing section 15 of the Charter incorrect in
10 regard to equal -- I guess I'd say equal application of the law is --
11
12 THE COURT: Well you're not entitled to an application
13 requiring somebody to lay charges. Full stop. It's as simple as that in lay terms; okay? So,
14 that's struck.
15
16 THE ACCUSED D. STEPHAN: Okay.
17
18 Discussion
19
20 THE COURT: So let's deal with the other matter then. You wish
21 witnesses to come by video. I take it, it's only related to expense having regard to the
22 affidavit that you attached. You said you're going to use Justice Jerke's decision as
23 background. I'll hear you on that. But when I look at the affidavit of Ms. Hurley, it seems
24 that you don't want to spend $110 a night for a hotel or mileage, or whatever. It's just an
25 expense thing, isn't it?
26
27 MS. KRISTENSEN: Not -- yes, and no, Sir. It's actually more of a
28 convenience thing in the sense at -- when a police call was made from Alberta Children's
29 Hospital and CPS responded, those are the four members, actually five, one of them now
30 with the RCMP, members responded to the hospital but did not speak with the accused.
31 My understanding is each of these individuals will take the stand and say, yes, I responded
32 to the call; no, I had nothing to do with Collet Stephan or David Stephan. Once
33 jurisdictional issues were sorted out, the RCMP took over the investigation and then they
34 moved forward.
35
36 And so what I'm trying to avoid, yes, there's an expense element, but I anticipate each of
37 these officers will say I had no contact with the accused on the date in question. And so my
38 preference is to have that, taking into account sort of the larger picture, and not taking these
39 individuals away from Calgary and their other policing duties to have them -- I'm seeking
40 to have them testify via video link with respect to that.
41
 78

1 The RCMP officer who arrives on scene cannot say whether or not the accused had had
2 prior contact with other police officers and so that is the reason for that application in
3 relation to those individuals.
4
5 THE COURT: So help me a little more.
6
7 MS. KRISTENSEN: Certainly.
8
9 THE COURT: Are you concerned that the allegation is that
10 there was some improper conduct by some of these people, or you might face that --
11
12 MS. KRISTENSEN: Yes, Sir.
13
14 THE COURT: -- application? And so you expect that they
15 would say either in person or by affidavit or something that they had no contact with Mr.
16 Stephan or Ms. Stephan?
17
18 MS. KRISTENSEN: That's the information from disclosure. They
19 weren't called at the previous proceeding.
20
21 THE COURT: So why do you need them now?
22
23 MS. KRISTENSEN: Out of an abundance of caution, Sir, because
24 there's no other way other than hearsay for me to prove that they did not have contact with
25 Mr. Stephan. The RCMP officer who arrived and will testify, will indicate there were other
26 police officers on scene. He doesn't know what contact those other officers had with the
27 accused. And so to close the door as it were on any issue with respect to prior police
28 involvement or CPS involvement with the accused, I'm seeking to call them for that
29 purpose and to call them very briefly.
30
31 THE COURT: So presumably they could provide that evidence
32 by affidavit?
33
34 MS. KRISTENSEN: I suppose. If that would be agreeable to the Court
35 and both Mr. and Ms. Stephan.
36
37 THE COURT: Well, evidence in criminal cases is usually given
38 in person. If it's necessary, you bring the witnesses. And if it's -- if it's just a cost thing,
39 your application will be denied. If there is an anticipation that the evidence will be of no
40 relevance to anybody once you know what it is, once we know what it is, that's a different
41 situation. So --
 79

1
2 MS. KRISTENSEN: I don't think that addresses section 714.2 of the
3 Code, and the idea is to save -- it's not really the Crown's money, it's frankly a little bit
4 broader than that because it's the time involved of five people travelling down to Lethbridge
5 and travelling back.
6
7 THE COURT: I don't -- didn't bring 714.2 with me. I know
8 there's a right in certain circumstances for the Court to order evidence by video and, as I
9 said, if it's just expense and inconvenience, I'm not likely to grant your application. But if
10 you're saying it's out of an abundance of caution, then it may be, it may be, that they could
11 provide that by affidavit. And if -- I'll speak to Mr. Stephan and see if he has some issue
12 with that.
13
14 MS. KRISTENSEN: Sir, I apologize, I said 714.2 but it's 714.1. The
15 Court can always order a witness within Canada to testify by video link or allow it where
16 the location and personal circumstances -- taking into account the location and personal
17 circumstances of the witness; the costs that would be incurred if the witnesses had to be
18 physically present; and the nature of the witness' anticipated evidence.
19
20 THE COURT: Well, the latter is quite important, and you would
21 expect that they would say under oath, in person or by affidavit, we had no contact with
22 Mr. Stephan or Ms. Stephan at the Children's Hospital.
23
24 MS. KRISTENSEN: Correct.
25
26 THE COURT: And that's all you want.
27
28 MS. KRISTENSEN: Yes.
29
30 THE COURT: Mr. Stephan, what do you say about that?
31
32 THE ACCUSED D. STEPHAN: I would -- I wouldn't take any issue with it with
33 what the -- Ms. Kristensen is recommending if I didn't have a distinct recollection of having
34 communication with two of these officers, of which I cannot identify. And so for the sake
35 of the accused, I would anticipate that there is a potential of a jogging of one's memory
36 after seven years when these witnesses take the stand in person that I may in fact have a
37 better recollection of which two it was that I did have an interaction with, and to what
38 degree that was. But I do have a distinct recollection of engaging communication with two
39 of them.
40
41 THE COURT: Okay. So let me see if I can work through this
 80

1 and get a practical solution that protects the accused's ability to full answer and defence but
2 meets the criteria of section 714.1 in substance. It seems to me, Ms. Kristensen, that you
3 should provide an affidavit by each of these four persons with a photograph and attach that
4 to the affidavit this is a true photograph so that identification can be made. And then if the
5 evidence is that they had no contact with Mr. or Ms. Stephan, then they say that and Mr.
6 Stephan can advise us that he wants to examine them. In which case, they will attend. Is
7 that a practical solution that deals with the substance of the matter?
8
9 MS. KRISTENSEN: I will likely have them all attend.
10
11 THE COURT: Well, you can if you want, that's the
12 (INDISCERNIBLE). But I'm trying to assist you in not having them attend for some
13 purpose when there's no real purpose. And so but Mr. Stephan says, quite rightly, I have a
14 recollection of talking with two of those people, I don't know which two. And so we need
15 to assist him. If they attend, he can say, oh yeah, I remember that guy, or I don't remember
16 that one. But if they're prepared to put a photo so that he can identify who they are, then
17 that covers it. If you don't want to do that, then withdraw your application or I'll dismiss it.
18 Pick one.
19
20 MS. KRISTENSEN: I'll withdraw the application, Sir.
21
22 THE COURT: Okay. And that's for all of those witnesses?
23
24 MS. KRISTENSEN: Yes, Sir.
25
26 THE COURT: Okay. So, in number 3, I take it your position,
27 and we've talked about this indirectly on the Dwernychuk notice that you want the defence
28 to be providing specific applications with respect to this disclosure that we've been talking
29 about.
30
31 MS. KRISTENSEN: I think, effectively, that number 3 in my letter is
32 covered by the Court's comments with respect to sections 4 through 7 of the Charter notice.
33
34 THE COURT: Okay. So, is there anything further that arises
35 then from your letter and the material attached to it?
36
37 MS. KRISTENSEN: I -- yes, Sir, in the sense of timelines for any
38 submissions and scheduling of when these applications will be heard so that Crown
39 witnesses are properly lined up and not sitting for length periods of time.
40
41 THE COURT: So, in the normal course, you know that you
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1 would speak to the counsel for the accused and you would make those arrangements and
2 you would tell me what you have agreed to in terms of scheduling. Is there any reason that
3 you and Mr. Stephan can't do that?
4
5 MS. KRISTENSEN: My difficulty is with respect on the O'Connor
6 and Mills applications being returnable on the 25th. And I'm not disagreeing with that, but
7 I would propose that we set aside -- I'm not really sure how much time to set aside for
8 those, and then proceed to voluntariness application after that.
9
10 THE COURT: Well, it may be we'll adjourn them later in that
11 week or later in the two-week period we have.
12
13 MS. KRISTENSEN: But if --
14
15 THE COURT: I want to see the applications and I want them to
16 come and bring the material and say, here's the documents and we're happy for him to have
17 them. Or, we object, and then I'll set a hearing within the next two weeks to deal with it.
18
19 MS. KRISTENSEN: But has the Court has not just indicated that the
20 applications have to be filed by February 1st but they would be returnable on February 25th
21 --
22
23 THE COURT: Yes.
24
25 MS. KRISTENSEN: -- in Lethbridge?
26
27 THE COURT: Yes.
28
29 MS. KRISTENSEN: And in the interim, served on opposing parties.
30
31 THE COURT: Yes.
32
33 MS. KRISTENSEN: Who would respond on February 25th.
34
35 THE COURT: Yes. They'd show up with the document and say,
36 here they are, you can have the; or, we don't have any; or, we object to you getting them.
37 And then we'd say, okay, if you don't have any objection, you go the information. We don't
38 have any objection, then turn it over. It's done. If they've got an objection or they don't have
39 any, then we'll figure out how to deal with that.
40
41 MS. KRISTENSEN: Sir, taking into account that we have the
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1 Mills/O'Connor application and a Jordan application, and I believe a voluntariness

2 application, I think those are the three applications the Court would be expecting to hear
3 during that period of time.
4
5 THE COURT: Yes.
6
7 MS. KRISTENSEN: My suggestion is that the parties bring the
8 application, have to file their submissions, any written submissions, three weeks prior to
9 February 25th.
10
11 THE COURT: Okay. So I said the 1st of February is when they
12 need to file their material and they need to serve it by that time on the third parties.
13
14 MS. KRISTENSEN: I was referring to any case law that would be
15 relied on in the hearings.
16
17 THE COURT: Okay.
18
19 MS. KRISTENSEN: Do we wish to maintain the same date?
20
21 THE COURT: I don't see any reason why they shouldn't do it all
22 at once. So they have an application relating to the doctors for certain information, they
23 provide notice of the application, and in the application the material they're relying upon.
24
25 MS. KRISTENSEN: Then the Crown will comply with the deadline in
26 relation to the voluntariness voir dire as well.
27
28 THE COURT: Okay.
29
30 MS. KRISTENSEN: And I would suggest, if I may, that voluntariness
31 voir dire would not begin until the Wednesday, so February 27th.
32
33 THE COURT: And why is that?
34
35 MS. KRISTENSEN: Because it's a little bit unknown what will
36 happen on February 25th in terms of a Mills/O'Connor application. There's also a Jordan
37 application to be dealt with. And I'm concerned about having all of the witnesses I believe
38 on the voluntariness application are travelling from out of town and so I would prefer not
39 to have them simply waiting in the wings until we're ready.
40
41 THE COURT: So what about the -- what about the Jordan
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1 application, are you bringing witnesses for that as well?

2
3 MS. KRISTENSEN: I do not anticipate that I would.
4
5 THE COURT: Okay. So all I'm anticipating is on the 25th, we're
6 going to go through the agenda of the work we have to do in the next two weeks. And
7 there's going to be Dr. Cunningham, or somebody on his behalf, saying he doesn't have the
8 information but the hospital has and we're prepared to give it to Mr. Stephan and here it is.
9 Good. That's going to take ten minutes. Or they're going to say we have an objection, and
10 I'm going to say, okay, I'm going to schedule it for Friday morning to hear it, or next
11 Monday. So, I want them to be there on that first day and we'll deal with it or schedule it.
12
13 MS. KRISTENSEN: I understand that. I guess I'm just trying to clarify
14 that I'm not proposing to have any witnesses on the voluntariness --
15
16 THE COURT: We'll get to them by about 11:00. If you want to
17 make it the next day, I don't mind.
18
19 MS. KRISTENSEN: All right.
20
21 THE COURT: It's not the end of the earth. So if you want to say
22 that the O'Connor applications would be returnable on the 26th, you think you need more
23 than the 25th for the voluntariness?
24
25 MS. KRISTENSEN: Yes, Sir. I think I need about three days. I'd rather
26 keep the O'Connor/Mills applications returnable on the 25th. I'm happy to start the
27 voluntariness voir dire on the next day.
28
29 THE COURT: Okay.
30
31 MS. KRISTENSEN: We can deal with the Jordan application on the
32 first day as well.
33
34 THE COURT: Okay. So that's what we'll do.
35
36 MS. KRISTENSEN: Thank you, Sir.
37
38 THE COURT: Now, is there any other direction we need? Now,
39 I appreciate that there have been some difficulties in communication between the Stephans
40 and the Crown, but they don't have counsel, that's who you communicate with. So if you -
41 - if there's things you want to straighten out between the two of you, communicate with
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1 each other. Doesn't have to be by person, doesn't have to be by phone, it can be by email,
2 I don't care, but we expect parties who have counsel to communicate with other counsel. If
3 you don't have counsel, you're it. So have those communications. And it's better for every
4 party if you do it, frankly, in email because then you've got a record. But I don't need to be
5 part of that communication. You might want to keep that communication in case there's no
6 response.
7
8 Are there any other directions you need from me at this time?
9
10 MS. KRISTENSEN: Not from the Crown.
11
12 THE ACCUSED D. STEPHAN: I'm okay. Just overwhelmed, but okay.
13
14 THE COURT: Okay. So I don't expect -- let's set the ground
15 rules. There's just some expectations that the Court has. I don't expect you to be
16 communicating with me further in writing. And if -- except to provide a brief or any of
17 these applications. And if there's things that you need direction on, either Crown or
18 otherwise, then advise my assistant that you need a case management hearing on a matter
19 and tell us what it is and we'll see if we can get together in person or by telephone. Maybe
20 by telephone, a telephone application because people are in different places and, you know,
21 we need direction on this issue. So, and then we'll do it. If it can wait until the 25th, we'll
22 do it then.
23
24 THE ACCUSED D. STEPHAN: My apologies, one other matter, Sir. And I want
25 to start off by expressing by gratitude for the Court's leniency in allowing Collet to be able
26 to stay at home, tending to the needs of a nursing baby and the other kids. And so she has
27 put it out, and we can confirm with her on the phone, she has asked if it would be amenable
28 to the Courts to have her not come in person to the voir dires on the 25th to the 8th, I
29 believe, for the same purpose that she can tend to a nursing baby and the other children.
30
31 THE COURT: Crown have any position on that?
32
33 MS. KRISTENSEN: We would be, I mean, it would be exceptional to
34 have her excused when we're determining the admissibility of evidence against her.
35
36 THE ACCUSED D. STEPHAN: And I can agree with what Ms. Kristensen is
37 saying there as it's quite likely that she would be called up to the stand for the voluntariness
38 voir dire and so I'm wondering if maybe we can just kind of work around the schedule
39 where it would be necessary that she's actually here versus when maybe it's not so necessary
40 that she's here.
41
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1 MS. KRISTENSEN: From the Crown's perspective, that would be

2 during the voluntariness voir dire which is set to commence now on Tuesday, February
3 26th. I anticipate we'll run about three days.
4
5 THE COURT: Okay. So you suggest that the arrangements be
6 that she be there 26th, 27th, and 28th of February, but other than that she could be excused?
7
8 MS. KRISTENSEN: I take no position.
9
10 THE COURT: Okay. So that's what it is. If she's going to be a
11 witness, she has to be there. And she should be there to hear the evidence that's against her
12 because she may have a right, independent of you because she's an independent person, to
13 make submissions and to cross-examine and do those things. So, on that part of it, she
14 needs to be there.
15
16 THE ACCUSED D. STEPHAN: Thank you very much, Sir.
17
18 THE COURT: Okay. Now, there's been other matters raised and
19 I'm just going to deal with these. One, was the recusal, and in the letter, I indicated that I
20 wasn't voluntarily recusing myself. And so if you have an application for recusal, or for
21 anything else, you file it for that returnable on the 25th and we'll deal with it.
22
23 THE ACCUSED D. STEPHAN: Thank you, Sir.
24
25 THE COURT: And we schedule these things a little more
26 specifically than that when a party's represented, but you got any applications, bring them
27 there and I'll deal with them.
28
29 So, are there any other matters then that we need to deal with today?
30
31 MS. KRISTENSEN: Not from the Crown.
32
33 THE COURT: Mr. Stephan?
34
35 THE ACCUSED D. STEPHAN: No, Sir.
36
37 THE COURT: Okay. Then we stand adjourned until February
38 25th, at 10:00 in Lethbridge. And we will proceed that week and the next week until we
39 run out of work to do; okay? We stand adjourned.
40
41 THE COURT CLERK: Order in court, all rise.
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3 PROCEEDINGS ADJOURNED UNTIL 10:00 AM, FEBRUARY 25, 2019
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1 Certificate of Record
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3 I, Elena Kay, certify that this recording is the record made of the evidence in the
4 proceedings in Court of Queen’s Bench, held in courtroom 1402, at Calgary, Alberta, on
5 the 18th day of January, 2019, and that I was the court official in charge of the sound-
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1 Certificate of Transcript
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3 I, Su Zaherie, certify that
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5 (a) I transcribed the record, which was recorded by a sound recording machine, to the best
6 of my skill and ability and the foregoing pages are a complete and accurate transcript
7 of the contents of the record and
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9 (b) the Certificate of record for these proceedings was included orally on the record and is
10 transcribed in this transcript.
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17 TEZZ TRANSCRIPTION, Transcriber
18 Order Number: AL-JO-1002-3502
19 Dated: January 29, 2019
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