Lawyers defending a Mirror café owner accused of violating the Public Health Act during the pandemic must make further arguments why they should get additional correspondence between health officials, RCMP and other agencies.
In April, lawyers for Christopher Scott, owner of the Whistle Stop Café, argued in Red Deer’s Alberta Court of Justice that internal correspondence between Alberta Health Services officials, the Office of the Medical Officer of Health, the Office of the Premier, Alberta Justice, Alberta Gaming Liquor and Cannabis and RCMP should be considered first party information and must be provided to the defence.
In making their Case, Scott’s lawyers, Chad Williamson and Yoav Niv, argued that all of the agencies co-ordinated in the prosecution of their client and that the actions taken against him were political in nature. That correspondence should be considered first party information because of its relevance to the case or because it is the “results of the fruits of the investigation” into Scott.
If deemed third party information, correspondence will not automatically be turned over. Defence lawyers must make further arguments why it is relevant and other agencies involved can submit their opposing arguments.
Crown prosecutor Peter Mackenzie argued in April that the defence was mixing the Public Health Act violations with unrelated civic contempt proceedings. He also argued that there has been no evidence presented to suggest political interference or motivation in Scott’s prosecution.
The defence’s application does not meet the standard for showing the correspondence should be considered first or third party disclosure.
In a decision released on Monday, Red Deer Court of Justice Justice Jim Glass mostly dismissed the application to have the correspondence considered first party disclosure that must be provided.
A defence request that disclosure of all RCMP actions related to Scott’s arrest on May 8 after he held an anti-lockdown rally at his café in violation of a court order and the Public Health was deemed “completely irrelevant to this prosecution.” Disclosure including officer’s notes, bodycam footage and other information had been requested.
Glass said almost all of the records are third party and further submissions must be made as to why they should be disclosed.
Williamson said as third party disclosure a higher legal threshold must be met for its release, which will now be pursued.
“This is only the first part of a two-part application for further disclosure materials from AHS and others,” said Williamson in an email. “The legal test that applies to whether we’re entitled to the materials we’re looking for has now been set.
“We’ll put our best foot forward during the second act to show that we have valid legal reasons for obtaining the documents we believe exist and may be being withheld by these government agencies.”
Scott is facing seven charges of violating the Public Health Act and one violation under the Gaming, Liquor and Cannabis Act. He was charged after health inspectors and RCMP officers made numerous visits between January and April 2021 to check on his restaurant after he had been warned he was violating health orders in place at the time prohibiting in-person dining.
A trial began last August and during the cross-examination of a health inspector, the defence learned of additional disclosure held by Alberta Health Services. An application was made to get the information and 1,000 pages of email correspondence and attachments were turned over in October.
The information led Scott’s lawyers to file a supplemental Charter notice alleging abuse of process, claiming there was a co-ordinated and politically motivated effort to go after their client. As a result, lawyers requested more disclosure, which led to the April hearing to determine what was first party or third party disclosure.