Alberta Court of Appeal denies records from Alternative Measures Program in road rage litigation

The Alberta Court of Appeal upheld a decision denying production of records regarding a party’s participation in the Alternative Measures Program since it is inadmissible in evidence against that party.

In Kennedy v Swientach, 2022 ABCA 161, Mark Kennedy sued Norman and Deborah Swientach for injuries suffered in an alleged 2018 road rage incident. Criminal charges were ultimately resolved through the Alternative Measures Program.

Kennedy requested the production of Norman Swientach’s medical, psychological, and psychiatric records, claiming that it was relevant and material to show the latter’s pre-existing anger issues. Swientach refused. He also refused to answer any questions regarding his criminal charges, court appearances, and participation in the Alternative Measures Program.

The chambers judge ruled that Kennedy was entitled to receive police records but not records regarding the Alternative Measures Program or medical records. Kennedy appealed and argued that the judge erred in allowing Swientach to withhold relevant and material records arising from the alleged assault.

The appeal court disagreed, finding that “the production of documents is discretionary and is afforded deference.”

As to the medical records, Kennedy failed to demonstrate that these records were relevant and material to the issue at hand and the request amounted to a fishing expedition, said the court.

As for the Alternative Measures Program, s. 717(3) of the Criminal Code, RSC 1985, c C-46 is clear that “any record containing admission, confession, or statement accepting responsibility is not admissible in evidence against [Swientach] in any civil or criminal proceeding,” said the court.

Further, even if relevant and material to the issues, these may be subject to claims of privilege, said the court.

The Court of Appeal noted that had Kennedy sought records through an application for third-party records, the chambers judge could have fully considered the release of the documents. However, the court found that record holders, including the police service and Attorney General, were not named as respondents in the application. The grounds raised by Kennedy in support of production of the records – whether Swientach should have been referred to the program in the first place – was outside the scope of his civil action and could have been potentially addressed had the relevant parties been included, said the court.

Having failed to satisfy the standard of review, the appeal court found no basis to interfere with the decision.