R. v. Sasano

2022 BCSC 711 R. v. Sasano

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Sasano, 2022 BCSC 711 Date: 20220429 Docket: 70994 Registry: Chilliwack Regina v. Jeff Luke Rigear, Roy Makoto Sasano, Nicholas Steven George Schafer and Amy Elysia Soranno Before: The Honourable Mr. Justice Verhoeven Oral Reasons for Judgment re: Application by Jeff Rigear for Production of Documents by the BC SPCA (Voir Dire No.

1) Counsel for the Crown: S.H. Quendack Counsel for the Accused Rigear: J. Flood Counsel for the Accused Schafer: B.D. Vaze Counsel for the Accused Sasano: J. Killoran Counsel for the Accused Soranno: L. Salloum Counsel for the BC SPCA: C. Rhone Place and Dates of Voir Dire: New Westminster, B.C. March 4, 29, 2022 Place and Date of Judgment: New Westminster, B.C. April 29, 2022 Table of Contents I. Introduction. 3 II. Background. 3 III. The Application. 7 IV. Analysis. 8 A. BC SPCA Documents relating to Intended Abuse of Process Argument 11 B. Condition of the animals. 15 V. Conclusion. 16 I. Introduction[1] [1] Jeff Rigear, one of the four defendants in this matter, applies for an order for production of documents in the possession of the British Columbia Society for the Prevention of Cruelty to Animals (the "BC SPCA"). The other three defendants support Mr. Rigear's application, but are not co-applicants. The BC SPCA and the Crown oppose the application. [2] There are seven counts on the indictment. Mr. Rigear is charged in relation to three of the seven counts. [3] This application focuses on the first five counts, all of which relate to events taking place from February to April, 2019, at Excelsior Hog Farm, located on Harris Road, Abbotsford. The other counts relate to events at two other farms. II. Background [4] The defendants are animal rights activists. [5] The Crown

alleges (Count 1) that in the late and early morning hours of February 9 and 10, 2019, all four defendants broke into Excelsior's barn and committed the offence of mischief in the barn. The mischief consisted of placing hidden cameras in the barn, for purposes of surreptitiously viewing and recording the farm activities and the pigs. [6] Count 2, against Schafer and Soranno, is similar. It alleges that on March 5, 2019, Schafer and Soranno broke into the Excelsior barn again, for the purpose of monitoring, replacing, or setting up new cameras. [7] The cameras and associated battery packs and wires were discovered by the farm's owners and operators, the three Binnendyk brothers, on March 21, 2019. They reported the discovery to the Abbotsford Police Department ("APD"). On the following day, March 22, 2019, Constable L. Taylor of the APD attended the farm, spoke to the Binnendyks, and took custody of the cameras and related material. [8] There is a minor discrepancy in the evidence as to the number of cameras found and turned over to the police. Ray Binnendyk recalls finding three cameras; one in the barn, and two at a loading ramp. He found a fourth partially eaten battery pack, from which he inferred there must have been a fourth camera, which might have been eaten by a pig. His brother Jeff recalls that there were two cameras and one extra chewed up battery pack. Calvin

Binnendyk recalls that they found three cameras in total. [9] The cameras utilized SD cards to store the data. SD cards are very small removable digital computer storage cards. Before turning the material over to the APD, the Binnendyks removed the SD cards from the cameras and viewed the imagery, in part. They testify that they watched only a few minutes of the video, and saw nothing of any particular note. [10] Constable Taylor says she took custody of two cameras and related equipment, including two SD cards. [11] The police lost the SD cards. This loss of evidence is the subject of an application by all four defendants for a stay of proceedings in respect of counts 1-3, which I will address in other reasons for judgment. [12] On April 23, 2019, a television news station, CTV News Vancouver, reported on a "secret video" of Excelsior Hog Farm's operations, obtained by animal rights activists. The video was provided to CTV News by an organization, People for the Ethical Treatment of Animals ("PETA"), who advised CTV that the footage was provided to PETA anonymously, earlier that month. The news outlet reported that it had interviewed one of the people who captured some of the footage, who asked to have his identity concealed. It also reported that the BC SPCA was investigating the matter, and would visit the farm with a veterinarian to investigate its conditions and

practices. [13] BC SPCA scheduled an inspection of the farm to occur on May 1. [14] On April 28, 2019, a large and well-organized protest occurred at the Excelsior Hog Farm. The events of the protest form the basis of counts 4 and 5 on the indictment, which allege breaking and entering and committing an indictable offence, as well as mischief, by the co-accused, Sasano, Schafer, and Soranno. Mr. Rigear is not charged in relation to those counts. [15] At the protest, approximately 48 persons entered the pig barns at the Excelsior Hog Farm. Another group of over 100 persons were on the perimeter of the property on or near Harris Road. [16] Mr. Rigear was among the protesters who remained outside the hog farm facility. [17] The APD was called and attended. Negotiations ensued involving the protesters inside the barns (represented by Ms. Soranno), the police, and the Binnendyk family. The protesters refused to leave unless and until the police and the Binnendyks permitted a media tour, with cameras, by television news media who were in attendance, waiting outside. After some negotiations, the tour took place. After the tour, the protesters in the barn were collectively advised that they were under arrest. They were released after on-scene processing, with the exception of Ms. Saranno, who was taken to the Abbotsford police station, processed, and released on an undertaking to a

peace officer. [18] The BC SPCA inspected the facility on May 1, 2019. The inspection was carried out by Ms. Kaylee Pugh, regional manager of investigations for BC SPCA. She was accompanied by Special Police Constable Brittney Collins; BC SPCA's Senior Manager of Cruelty Investigations, Shawn Eccles; and a retired veterinarian, Dr. Chris Byra. [19] Ms. Pugh prepared a report of the BC SPCA investigation, which concluded that the farm was meeting the requirements of applicable farm Codes of Practice, except with respect to light levels available in one area of the facility, which could be rectified by turning on available overhead lights for at least eight hours per day. She saw no evidence of neglect or abuse of the animals, and noted that the owners appeared quite conscientious regarding their animal management. [20] On May 29, 2019, television news outlets reported that the BC SPCA would not be recommending any type of charges against the Excelsior Hog Farm. The BC SPCA spokesperson noted that it could not rely on the video released by PETA. It was unable to verify the video, which lacked timestamps or geographic indicators, and the individual or individuals responsible for filming had not come forward to provide statements to accompany the video. The report also noted that the SPCA visited the farm and failed to find anything that would warrant charges. [21] Mr. Rigear has

not filed an affidavit in support of his application. However, in submissions, his counsel submits that as a result of the BC SPCA comments as reported in the news media, Mr. Rigear contacted the BC SPCA call centre on July 10, 2019. BC SPCA records about this call and Mr. Rigear's subsequent interactions with BC SPCA have been produced via Crown disclosure. [22] Mr. Rigear spoke with a BC SPCA call centre operator, who documented the telephone call. He contends that during this call he was promised confidentiality in relation to the information he wished to provide to the BC SPCA. [23] On July 24, he delivered video footage to the BC SPCA. On August 5, 7, and 10, 2019, he sent emails to Shawn Eccles, BC SPCA Senior Manager of Cruelty Investigations, contending that the video evidence available demonstrated violations of the farm Code of Practice, and urging Mr. Eccles to ask the APD for further video evidence, which Mr. Rigear asserted was in the possession of the APD. [24] Mr. Rigear spoke with Mr. Eccles by telephone on August 6, 2019. Mr. Rigear confirmed that he had dropped off a hard drive with video footage taken from the hidden cameras that he had installed at the Excelsior Hog Farm. Mr. Eccles told Mr. Rigear that Crown counsel had advised that the video evidence might not be admissible in court, due to the manner in which it had been obtained. [25] On August 13, 2019,

Mr. Eccles spoke with Constable Mitchell of the APD and informed her that he had in his possession a hard drive with video footage received from Mr. Rigear. III. The Application [26] Mr. Rigear contends that documents in possession of BC SPCA are relevant to: a) his pending pretrial application seeking a stay of proceedings on the basis of an abuse of process and violation of his s. 7 Charter rights; and b) key issues at trial relating to the well-being of the animals at the hog facility. [27] On Mr. Rigear's application for a stay of proceedings, he intends to argue that: a) the BC SPCA promised him confidentiality in the context of his report of animal cruelty at the hog facility, and thus conferred on him the status of a confidential informant; b) all of his communications with the BC SPCA were accordingly protected by informer privilege; c) the informer privilege was never waived; and d) the disclosure by Mr. Eccles of the applicant's communications with the BC SPCA to the APD violated the informer privilege. [28] Mr. Rigear contends that BC SPCA could have records relating to the health of the pigs which, he argues, is an issue at the trial. [29] Specifically, the applicant seeks production of a broad array of documents described as follows: I. All documents and information in the possession or control of the BC SPCA, dated from 2018 to present, that directly or indirectly

discuss, mention, refer or relate to: a. the Applicant Jeff Rigear (a.k.a Geoff Regier), b. Amy Soranno, Nick Schafer, and/or Roy Sasano (the "Co-Accused"), c. the Excelsior Hog Farm, d. any investigation or inquiry into the Excelsior Hog Farm initiated by the BC SPCA, e. any police investigation involving events at the Excelsior Hog Farm, f. any police investigation into the Applicant and/or the Co-Accused, and/or g. an investigation into Jaedel Enterprises initiated by the BC SPCA following receipt of information from the Applicant, including but not limited to communications (including but not limited to electronic communications sent by email, text or other electronic messaging, or any other means) to, from, or between any of the following individuals: Shawn Eccles, Craig Daniell, Lorie Chortyk, Eileen Drever, Marcie Moriarty, Julio Ramirez, Geoff Urton, Cassidy Patton, Kaley Pugh, and Amy Morris, and any other employee, director, officer, or agent of the BC SPCA; and II. Any written policies, procedures or other guidelines (whether available to the public, or internal) dated from 2018 to present regarding confidentiality in relation to reports of animal cruelty made to the BC SPCA, including but not limited to a copy of the document referred to in the email from Cassidy Patton to Shawn Eccles, Marcie Moriarty, Julio Ramirez, and Geoff Urton dated July 11, 2019 with the

subject line "Re: #296386 - Excelsior Hog Farm" in which she stated "I have this printed at my desk so I read it to him". IV. Analysis [30] The applicant contends that the BC SPCA is a law enforcement agency that possesses information that is obviously relevant to the applicant's case. He argues that the BC SPCA has a duty to disclose the information as first party disclosure. Alternatively, he argues that information in the hands of BC SPCA is likely relevant and should be produced as third party disclosure, pursuant to this application and the third party disclosure regime established in R. v. O'Connor, [1995] 4. S.C.R. 411, 1995 CanLII 51 (S.C.C.) [O'Connor]. [31] First party disclosure refers to the obligation of the Crown to disclose all relevant non-privileged information in its possession or control, whether inculpatory or exculpatory, pursuant to the principles set out in R. v. Stinchcombe, [1991] 3 S.C.R. 326, 1991 CanLII 45 (S.C.C.) [Stinchcombe]. The Crown's duty to disclose is triggered upon request and does not require an application to the court; Stinchcombe at 342-343; R. v. Gubbins, 2018 SCC 44 [Gubbins], at para. 19. [32] For purposes of Stinchcombe, "the Crown" refers only to the prosecuting Crown, not all Crown entities; other Crown entities, such as the police, are third parties for the purposes of disclosure: Gubbins at para.

20. However, the Crown has a duty to make reasonable inquiries when put on notice of material in the hands of police or other Crown entities that is potentially relevant: R. v. McNeil, 2009 SCC 3 [McNeil], at para. 49; Gubbins, para.

21. As well, police have a corresponding duty to disclose all material pertaining to their investigation of the accused. In addition, the police are required to hand over information beyond the fruits of the investigation where such information is obviously relevant to the accused's case: McNeil, para. 59; Gubbins, paras. 21 and 23. [33] Where the records sought are not part of the investigative file nor obviously relevant, they are not subject to the first party disclosure rule: Gubbins, para. 24. [34] In Gubbins, the court summarized the distinction as follows: [33] Based on the previous discussion of disclosure regimes, to determine which regime is applicable, one should consider: (1) Is the information that is sought in the possession or control of the prosecuting Crown? and (2) Is the nature of the information sought such that the police or another Crown entity in possession or control of the information ought to have supplied it to the prosecuting Crown? This will be the case if the information can be qualified as being part of the fruits of the investigation or obviously relevant. An affirmative answer to either of these questions will call for the application of the first party disclosure regime. Otherwise, the third party disclosure regime applies [Footnote omitted.] [35] In the circumstances of this case, only the third party disclosure regime pursuant to O'Connor would be applicable. The BC SPCA is not the prosecuting Crown. The BC SPCA is not a Crown agency. It is a society, continued under the Prevention of Cruelty to Animals Act, R.S.B.C. 1996, c.

372. It is a non-profit organization funded primarily by donations from private individuals. The powers of the society itself under the statute are very limited, and do not include investigations or prosecutions. However, the society has a role in relieving animals in distress and taking care of abandoned animals. The statute allows the society to appoint officers, employees or others as "authorized agents" for purposes of the statute. The statute grants certain powers to "authorized agents", including powers to conduct inspections of premises. However, an authorized agent can only exercise such powers if he or she has been appointed as a special provincial constable under the Police Act. [36] The applicable disclosure regime, then, is the third-party regime, pursuant to O'Connor. [37] Gubbins summarizes the third party disclosure rules as follows: [25] Third party disclosure is dealt with in O'Connor. To obtain disclosure of such records, an accused must make a court application. First, the burden is on the accused to show that the record is likely relevant. Second, where the accused discharges this burden, the judge will examine the record to determine whether, and to what extent, it should be produced to the accused. [26] Information will be "likely relevant" where there is "a reasonable possibility that the information is logically probative to an issue at trial or to the competence of a witness to testify": O'Connor, at para. 22 (emphasis deleted). The "likely relevant" threshold has been described as significant, but not onerous: O'Connor, at para. 24; McNeil, at para.

29. The reason that the relevance threshold is "significant" is to allow the courts to act as gatekeepers, preventing "speculative, fanciful, disruptive, unmeritorious, obstructive, and time consuming" requests for production: O'Connor, at para. 24, quoting R. v. Chaplin, [1995] 1 S.C.R. 727, at para. 32. [27] Nevertheless, the burden on the accused is not onerous. "Likely relevance" is a lower threshold than "true relevance", and has a "wide and generous connotation" that "includes information in respect of which there is a reasonable possibility that it may assist the accused in the exercise of the right to make full answer and defence": McNeil, at para. 44; see also O'Connor, at para.

21. Only after information has been shown to be likely relevant will the courts assess the actual relevance of the record sought. The courts then consider competing interests at the second stage of an O'Connor application: McNeil, at para.

39. It may be apparent "upon inspection by the court that the claim of likely relevance established at the first stage of the O'Connor application is simply not borne out": McNeil, at para. 40. [38] As noted, the accused must show that a record is "likely relevant" in the sense that there is a reasonable possibility that the information is logically probative to an issue at trial or to the competence of a witness to testify. I accept that in this context, relevance may include the possibility of a claim of abuse of process: R. v. Moazami, 2020 BCCA 3, at para.

50. A. BC SPCA Documents relating to Intended Abuse of Process Argument [39] In R. v. Durham Regional Crime Stoppers Inc., 2017 SCC 45, Moldaver J. summarized the legal principles relating to confidential informer privilege as follows: [11] Informer privilege is a common law rule that prohibits the disclosure of an informer's identity in public or in court. As a class privilege, informer privilege is not determined on a case-by-case basis. It exists where a police officer, in the course of an investigation, guarantees confidentiality to a prospective informer in exchange for information: R. v. Basi, 2009 SCC 52, [2009] 3 S.C.R. 389, at para. 36; Bisaillon v. Keable, [1983] 2 S.C.R. 60, at p.

105. The privilege acts as "a complete and total bar" on any disclosure of the informer's identity, subject only to the innocence at stake exception: Named Person v. Vancouver Sun, 2007 SCC 43, [2007] 3 S.C.R. 253, at para.

30. All information which might tend to identify the informer is protected by the privilege: ibid. The privilege belongs both to the Crown and to the informer and neither can waive it without the consent of the other: ibid., at para. 25. [40] Confidentiality need not be express. It may be implicit in the circumstances: R. v. Barros, 2011 SCC 51, at para. 31. [41] In R. v. Named Person B, 2013 SCC 9, Abella J., for the majority, elaborated on this point. She stated: [18] In R. v. Barros, [2011] 3 S.C.R. 368, this Court held that "not everybody who provides information to the police thereby becomes a confidential informant" (para. 31). The Court was clear, however, that "the promise [of protection and confidentiality] need not be express [and] may be implicit in the circumstances" (para. 31, citing Bisaillon v. Keable, [1983] 2 S.C.R. 60). The legal question is whether, objectively, an implicit promise of confidentiality can be inferred from the circumstances. In other words, would the police conduct have led a person in the shoes of the potential informer to believe, on reasonable grounds, that his or her identity would be protected? Related to this, is there evidence from which it can reasonably be inferred that the potential informer believed that informer status was being or had been bestowed on him or her? An implicit promise of informer privilege may arise even if the

police did not intend to confer that status or consider the person an informer, so long as the police conduct in all the circumstances could have created reasonable expectations of confidentiality. [42] However, in my view, in the circumstances of this case, there is no possible basis for Mr. Rigear's contention that he could be considered a confidential informant. There is also no possibility that other documents in the hands of BC SPCA could alter this conclusion. There is, therefore, no basis upon which an order for disclosure could be made on this ground. [43] As noted previously, Mr. Rigear has not sworn an affidavit in support of the application. He does not say that he received an express or implied promise of confidentiality. He does not say that he believed, on reasonable grounds, that his identity would be protected. I acknowledge that for purposes of an O'Connor application, the applicant need not necessarily rely on his own sworn evidence. The application must be supported by appropriate affidavit evidence that demonstrates the likely relevance of the records: McNeil at para. 27(2). [44] Mr. Rigear contends that there are grounds for his belief that he would have confidential informer status. He relies upon evidence disclosed by the BC SPCA about his telephone report to BC SPCA on July 10, 2019, where he revealed his identity as one of the persons who had filmed the

farm activities by way of hidden cameras. [45] He also relies on information set out on the BC SPCA website, stating: All calls are kept confidential and our animal protection officers will not release your information to the person you are reporting. The only time your information could be released is in the event of a court order, legal proceedings or if we ask you to provide a statement to obtain a search warrant. [46] The evidence from BC SPCA's call taker, Cassidy Patton, about her conversation with Mr. Rigear is consistent with this statement. [47] In an email she sent to several BC SPCA employees on July 11, 2019 about her telephone discussion with Mr. Rigear, she stated: During the beginning of the phone call, COMP [complainant, Rigear] stated that the last time they had brought forth evidence, the SPCA was unable to investigate because COMP wanted to remain anonymous. COMP told me that he "was willing to provide his information this time so that something could be done". At the end of the phone call, I asked again If he was willing to provide his information. COMP asked whether his name would be released to the farmer or to the media. I told him that "all of COMP's information is kept confidential but may be used in the event that a search warrant is required or if an offence has been committed and a charge is recommended to Crown Counsel, in which case the caller may

be called to give evidence" (I have this printed at my desk so I read it to him). I also stated that in Canada "the accused has the right to face their accuser in a court setting". He said he understood and proceeded to provide his name, phone number and address. He also wanted to arrange an in-person meeting with an APO to hand over the hard drive. [48] Therefore, Mr. Rigear was not promised confidentiality. He was expressly told that in the event of legal proceedings, his identity would not remain confidential, and in fact he might be required to testify in court. [49] Mr. Rigear told the BC SPCA directly that he was not concerned about the BC SPCA contacting the APD. On August 5, 2019, he sent an email to Shawn Eccles stating as follows: Hey Shawn, My name is Jeff Rigear, the guy who submitted the footage from Excelsior. I was wondering if you have asked or plan to ask the Abbotsford Police Department for the camera footage they are holding onto? They have more footage in than we do. There is reason to suspect that the footage they have contains much more serious content than what we have seen. There is a video clip that shows blood squirted on the walls of a certain area of the farm. It looked like something very violent took place there previously. Two of the cameras that the Abbotsford PD have were filming in that same area and quit [sic] possible captured that

activity. I imagine you might be hesitant to ask them for the footage because of potential legal repercussions for me. Please don't let this inhibit you from asking the [A]bbotsford PD for the footage on my account. I think it's unlikely that I would get in legal trouble. Even if I did, it doesn't matter to me if I get into legal trouble as a result. The footage that the Abbotsford PD has may make a huge difference in the crown counsel's decision as to whether or not the footage will be admissible in court. The primary factor that crown counsel would be looking at is the severity of the crime and that would likely change if more compelling footage was made available. I would like to meet you in person to look through some of the footage and explain some things that might not make sense. Again, legal repercussions for me are not a concern for me. Hope to hear from you soon. Jeff Rigear [Emphasis added.] [50] Thus, it is quite clear that Mr. Rigear hoped that Mr. Eccles would contact the APD, and expected that his identity would be revealed in those discussions. He specifically states, twice, that legal troubles or repercussions are not a concern for him. [51] The issue is whether Mr. Rigear was guaranteed or promised confidentiality, by BC SPCA, somehow acting as an agent for the police. [52] In the face of the direct and explicit indications as to Mr. Rigear's state of mind, I

see no possibility that Mr. Rigear could believe that he would be treated as a confidential informant, within the meaning of the relevant authorities. [53] In reality, Mr. Rigear's complaint is that he revealed his identity for a specific purpose, namely, for use in possible charges against the farm or the farmers, but that a condition was attached, to the effect that the BC SPCA could only reveal his identity to the police for the purpose he had in mind. [54] No authority has been cited to me that suggests an informant can control the information he or she provides in this way. Nor could BC SPCA have controlled the use to which the police could put the information. [55] As noted, Mr. Rigear seeks a broad array of documents from the BC SPCA. However, documents not pertaining specifically to BC SPCA's interaction with Mr. Rigear could have no possible bearing on his contentions. [56] As the record on this application shows, BC SPCA has already disclosed its records of its communications with Mr. Rigear to the police, and the Crown disclosed the records as first party disclosure. In addition to the email summaries Ms. Patton prepared about Mr. Rigear's telephone call on July 10, Mr. Eccles provided a statement to the police dated November 15, 2019, setting out his communications with Mr. Rigear. Mr. Rigear does not suggest that these records are incomplete. [57] Mr. Rigear also

plans to argue that even if the court does not conclude that he was a confidential informant, nevertheless, when BC SPCA revealed his identity to the police, this was an abuse of process and violation of his s. 7 Charter rights, which should lead to a stay of proceedings. [58] I have already concluded that there is no possibility that the BC SPCA has further documents that might bear upon the applicant's argument that he was promised confidentiality. The same reasoning applies in respect of his argument based upon abuse of process caused by BC SPCA's conduct. [59] Mr. Rigear argues that he made a report in 2018 to BC SPCA about an Abbotsford chicken farm, Jaedel Enterprises, as to which as far as he is aware his identity was kept confidential. There is nothing in the record before me suggesting that BC SPCA's files relating to its investigation of Jaedel Enterprises in 2018 could have any possible bearing on Mr. Rigear's contention. [60] In summary, while the "likely relevance" threshold is not onerous, the applicant has not established that there is any real possibility that BC SPCA could have documents that might support his confidential informant argument. B. Condition of the animals [61] Mr. Rigear argues that the BC SPCA might have records that would relate to the condition of the animals at Excelsior Hog Farm. [62] This demand is purely speculative. There is no basis upon

which I might conclude that the BC SPCA has any relevant information concerning the condition of the animals on the farm during the relevant time frame, February through April 2019, with the exception of the report of Ms. Pugh about BC SPCA's inspection on May 1, 2019. That report has already been disclosed. [63] There is nothing on the record which supports the idea that BC SPCA had any relevant prior involvement with or knowledge of the Excelsior Hog Farm prior to its contacts with the media and PETA in late April 2019. [64] In summary, Mr. Rigear has not shown a reasonable possibility that the BC SPCA might have records that could be of any assistance to him. V. Conclusion [65] The application is dismissed. [66] As I have concluded there is no possible basis for Mr. Rigear to claim he was a confidential informer, I set aside my previous orders sealing the application materials and directing that the hearing of the application be heard in camera. "Verhoeven J." [1] Immediately prior to the release of these reasons, the Crown entered a stay of proceedings with respect to the charges against the applicant, Mr. Rigear, thus rendering the application moot, at least insofar as Mr. Rigear is concerned. All counsel, including counsel for Mr. Rigear, requested that the reasons be released notwithstanding the stay of proceedings.