R v Lam, 2016 ABQB 304

Court of Queen ’ s Bench of Alberta Citation: R v Lam, 2016 ABQB 304 Date: 20160527 Docket: 130178791Q1 Registry: Edmonton Between: Her Majesty the Queen Respondent - and - Stephen Lam and Alaina Louise Glasser Applicant _______________________________________________________ Reasons for Deci sion of the Honourable Madam Justice Dawn Pentelechuk _______________________________________________________ Introduction [ 1 ] The Applicant, Mr. Lam, and his co-accused face a number of drug-related offences.

Their trial is scheduled to commence on June 20, 2016. [ 2 ] The Applicant seeks disclosure of information relating to three Informations to Obtain (ITOs) sworn in support of applications for a General Warrant, a Warrant to Search the Applicant’s vehicle and residences, and a Tracking Device Warrant for his car. [ 3 ] Specifically, he seeks production of: 1. all source handler notes (SHN) and source debriefing reports (SDR) relating to the information referred to by the affiant in his Informations to Obtain (ITOs) and all the notes and reports he made after conversations with the source handlers; 2. the criminal record of, and any outstanding charges against, the informant;

3. the informant control sheet; 4. the consideration given to the informant for information provided by the informant. Background [ 4 ] It is common ground that Det. Perka was the source handler for the confidential informant (referred to alternately as Source SP1 and Source A). In turn, Det. Perka had a conversation with the affiant, Cst. Toma, and provided him with information that Cst. Toma included in the ITOs. [ 5 ] Cst. Toma swore three ITOs in the course of the investigation of the Applicant. The first ITO was for a Tracking Device Warrant, which was granted by a Justice of the Peace on January 17, 2013.

Paragraphs 7 and 8 of the ITO refer to the information provided by a confidential informant. [ 6 ] The second ITO supported an application for a General Warrant granted by a Provincial Court Judge on February 11, 2013. Paragraphs 9 and 10 of the ITO refer to information provided by a confidential informant. [ 7 ] Cst. Toma swore a third ITO in support of a General Search Warrant granted by a Justice of the Peace on February 12, 2013. Paragraphs 9 and 10 of the ITO refer to information provided by a confidential informant. Evidence [ 8 ] Sgt. Jereme Anderson was called on behalf of the Crown.

He has been in charge of the Source Management Protection Unit (SMP Unit) for the last two and a half years. The SMP Unit is responsible for registering and monitoring confidential informants. Sgt. Anderson had no personal involvement in the investigation or arrest of the Applicant. [ 9 ] He explained that a source handler is a police officer who is the informant’s primary contact. The informant provides information to the source handler (usually a primary source handler).

The source handler takes very detailed and specific notes of the meetings and the information provided (SHN), and prepares more generalized accounts of the information (SDR). [ 10 ] The SMP Unit is responsible for the security of the information provided by the informant. The SMP Unit controls the sharing of that information with other members of the police service. Both the SHN and SDR are kept within the SMP Unit. The physical paper is kept in files created for each individual informant. The information is also scanned into a stand-alone computer contained within the SMP Unit.

All five members of the SMP Unit may access these documents. Sgt. Anderson advised that source handlers sometimes keep a copy of their SHN, but they are advised to keep them locked up or otherwise secured. [ 11 ] In the event that source handlers or affiants wish to review either SHN or SDR, they would have to review these documents at the SMP Unit. An affiant or other police officer would require the permission of the source handler before any review took place. In his time with the SMP Unit, Sgt.

Anderson has never received a request from an affiant to review these documents prior to the affiant swearing an ITO. [ 12 ] In cross-examination, Sgt. Anderson was asked about a situation where the source handler would provide information verbally to the affiant as to what was provided by the informant. He testified that the affiant must rely on the accuracy and reliability of what the source handler tells him, but the source handler should be reviewing the SDR before verbally informing the affiant. Sgt. Anderson has himself acted as affiant for ITOs.

His practice, which he believes is the best practice, is to satisfy himself to the best of his ability that the information he has received is true and accurate. [ 13 ] The SHN are very specific and detailed notes. They may contain details such as the date and exact location of the meeting with the source handler, the information provided by the informant, how the informant knows of this information. [ 14 ] As explained by Sgt. Anderson, access to the SHN and SDR is limited, even within the police service, to protect an informant from having his or her identity discovered.

Being an informant is a risky business and disclosure of their identity puts them at risk for death or grievous bodily harm. Similar consequences could fall to the informant’s family, friends or their businesses and property could be damaged or destroyed. [ 15 ] Sgt. Anderson testified that vetting can eliminate some security concerns, but any disclosure of information and even the extent of the redactions may provide the accused with clues that could identify the informant.

In short, the more items of information disclosed, whether vetted or not, the greater the risk that the informant’s anonymity could be compromised. [ 16 ] An informant’s criminal record is also contained in the individual files created for each informant and kept by the SMP Unit. Sgt. Anderson expressed concern about disclosing details of the criminal record as this provides another “piece of the puzzle” to the accused which could identify the informant. Even providing a redacted record, depending on the length of the record, could compromise the anonymity of the informant. [ 17 ] In cross-examination, Sgt.

Anderson conceded that some informants may suffer from addiction issues and may be motivated to work as an informant by fear, revenge, monetary gain, their own ego or their own pending charges. However, he also noted that convictions for drug related offences may serve to increase the credibility and reliability of the informant as they indicate that the informant is immersed in the drug culture. [ 18 ] The SMP Unit is responsible for determining the appropriate compensation and form of compensation to informants.

Compensation is usually monetary and is determined based on the file and the results obtained. Disclosure of particulars of compensationpaid, such as the amount, type and date provided, could compromise the anonymity of the informant. [19] Sgt. Anderson was not familiar with the term “informant control sheet”. There is a registration kit on an informant whichcontains all of the information which would immediately identify the informant. This information is contained within the informant’sfolder and scanned onto the stand-alone computer. Sgt.

Anderson opined that if this was ordered to be disclosed, the entire documentwould be redacted. [20] In the Crown’s materials filed in this application, it provided a copy of an email from Det. Perka. Defence counsel did not takeissue with the manner in which this information was put before the Court. The email indicates that Det. Perka’s usual practice is toprovide generalized information to the affiant, either verbally or in writing. On May 20, 2016, I was provided with a further email fromDet. Perka dated April 14, 2016.

In this email, he advises the Crown that he could not locate an email or WORD document that mayhave been sent to Cst. Toma. He advises this investigation was near the beginning of his tenure with EDGE and he was still developinghis practices. He advises he is unable to say with certainty whether he shared information with Cst. Toma verbally or in a written format. Parties’ Positions Applicant [21] The Applicant argues that all of the information sought is first-party production as he seeks this information to verify theaccuracy of the information contained in the ITOs.

The Applicant does not accept the accuracy or reliability of this information and willbe pursuing a Garofoli application at trial to challenge the ITOs. He notes that Det. Perka received the information from the informant inthe fall of 2012, but the ITOs were not sworn until January and February 2013.The Applicant notes there is no information indicatingthat Cst. Toma looked at any source documents whatsoever. Rather, his information was based solely on a conversation with Det. Perka.The Applicant questions whether Det. Perka conveyed the correct information when he passed it on to Cst.

Toma, and whether Cst.Toma correctly transcribed it in the ITOs. Crown [22] The Crown argues that the documents requested are not first party disclosure under R v Stinchcombe, (SCC),[1991] 3 SCR 326, [1991] SCJ No 83. The Crown defines first party disclosure in relation to an ITO as being the information containedwithin the four corners of that document. While it concedes that any source document referred to by the affiant is presumptivelyproducible, it submits that the relevance of background information relating to the ITO is significantly attenuated. [23] The Crown, relying on the evidence of Sgt.

Anderson, further submits that disclosure presents a great risk to theconfidentiality of informants, and maintaining informer privilege remains a paramount consideration. Law [24]

Section 7 of the Charter guarantees an accused’s right to make full answer and defence. The Crown has a general obligationto disclose potentially relevant information to an accused in furtherance of this right. Sopinka J in Stinchcombe placed the onus on theCrown to justify withholding information within its possession on the basis that it is not relevant. [25] It is assumed that material in the Crown’s investigative file is relevant to the case against the accused: R v McNeil, 2009 SCC3, [2009] 1 SCR 66.

Accordingly, in order to justify non-disclosure of such material, the Crown must establish that the information isclearly irrelevant. [26] In a general sense, the fundamental right to make full answer and defence also applies to evidentiary hearings, howeverdisclosure for the purposes of an evidentiary hearing is not identical in scope to disclosure for trial. [27] In R v Garofoli, (SCC), [1990] 2 SCR 1421, [1990] SCJ No 115 and R v Pires; R v Lising, 2005 SCC 66,[2005] 3 SCR 343, the Supreme Court discussed the scope of cross-examination of wiretap affiants.

The defence is entitled to all materialin the possession or control of the Crown that is potentially relevant to the case. This enables the defence to compare the contents of theinvestigative file received from the Crown to material in support of the authorization. [28] The purpose of a Garofoli hearing is to determine the validity of an authorization or search warrant and the admissibility ofthe evidence obtained through the authorization or warrant. The accused is entitled to all documents put before the authorizing judge andall other relevant materials in the “investigative file”.

This entitlement is balanced against other interests, notably preserving informantprivilege and the informant’s right to anonymity. [29] Defining the scope of the “investigative file” has proven difficult. Recently, in R v McKenzie, 2016 ONSC 242 at para 23;[2016] OJ No 293, Campbell J described the law relating to disclosure in this context as “diverse, evolving and unsettled”. As CampbellJ notes, defining the parameters of what constitutes the investigative file has very practical consequences.

If the requested disclosure isdetermined to form part of the investigative file, it is presumptively relevant and producible, subject to necessary vetting and redactionsto preserve informant anonymity. If, on the other hand, the disclosure issue is beyond the investigative file, then any presumption ofrelevance is significantly attenuated and the defence must show there is a reasonable possibility that the requested disclosure will be ofassistance on the Garofoli application. [30] A significant number of decisions from lower courts suggest that any materials that the affiant relied upon in drafting the ITO

form part of the investigative file and are presumptively producible under Stinchcombe disclosure obligations: McKenzie at para 32 . [ 31 ] In contrast, if the documents requested do not form part of the affiant’s information and belief or have not been reviewed by the affiant, they are not presumptively producible. [ 32 ] Unlike the trial, the Garofoli review hearing is not intended to test the merits of the Crown’s allegations. Rather, the focus is on the admissibility of evidence obtained through the authorization or warrant.

The reviewing judge’s inquiry is limited to whether there is any basis upon which the authorizing judge could have issued the authorization or warrant. Inaccurate information or an undisclosed material fact in the ITO may invalidate the judicial authorization, but it will not necessarily do so. [ 33 ] An accused may challenge the ITO on the grounds that the statements within it, or its contents, are unreliable or inaccurate. The reviewing judge determines whether, based on the record, there was at least some evidence that might reasonably be believed and on the basis to which an authorization could have issued.

Section 185(1) of the Criminal Code , RSC 1985, c C-46 contemplates that the decision of an authorizing judge may be made by reviewing affidavits founded on information and belief rather than personal knowledge. [ 34 ] In Lising , the Supreme Court addressed an accused’s right to cross-examine the affiant in relation to a wiretap authorization.

The Court held at para 3 that an accused seeking to cross-examine the affiant must meet a threshold test of relevance by establishing a reasonable possibility that the cross-examination will elicit probative testimony. [ 35 ] Following the hearing of this application, the Supreme Court issued its decision in World Bank Group v Wallace , 2016 SCC 15 .

The Court, at paras 119-124, [2016] SCJ No 15, reiterated that a Garofoli application to review an authorization does not determine whether the allegations underlying the application are ultimately true (which will be decided at trial) but rather whether the affiant had a reasonable belief in the existence of the requisite statutory grounds at the time the affidavit in support of the authorization was sworn. Cross-examination generally must show not only that some of the information relied upon by the affiant is false but also that the affiant knew or ought to have known that it was false.

This narrow test governs an application for disclosure of evidence in support of an application to review an authorization by way of cross-examination. During the review, evidence should be excised if the applicant establishes that the affiant knew or should have known that evidence was false, inaccurate or misleading, or that the affiant knew or should have known and included in the ITO further information in order to make full, fair and frank disclosure. Affiants may not ignore signs that other officers may be misleading them or omitting material information.

However, if there is no indication that anything is amiss, they do not need to conduct their own investigation. Therefore, while the O'Connor process may be used to obtain records for purposes of such an application, the applicable relevance threshold is narrower than in a typical O'Connor application. There must be material supporting an inference the affiant knew or ought to have known of errors or omissions. Analysis 1) SHN and SDR [ 36 ] The Applicant seeks copies of all SHN and SDR prepared by Det. Perka relating to the information contained within the ITOs.

The Applicant argues that the information can be edited or redacted, if necessary, to exclude any information that could identify the confidential informant. [ 37 ] There is no indication that Cst. Toma was provided copies of the SHN and SDR prepared by Det. Perka, nor that Cst. Toma reviewed these documents before he swore the ITOs. His information and belief regarding the confidential informant appear to have been based on a conversation or conservations with Det. Perka. [ 38 ] The information before me does not support an inference that Cst.

Toma knew or ought to have known of any errors or omissions arising as a result of the provision of information by Det. Perka. [ 39 ] This is not a case where discrepancies or contradictions are apparent from the disclosure, as was the case in R v Lemke , 2015 ABQB 544 , [2015] AJ No 951, and other cases cited. [ 40 ] The Applicant argues the documents should be produced in order to verify the contents of the ITOs. The Supreme Court has clearly set out the narrow test for disclosure in these circumstances.

It does not extend to verification of the ITO contents unless there is something to support an inference relating to the reasonableness of the affiant’s reliance on the information provided to him or her.

In the absence of an apparent inconsistency or discrepancy, and where there is no indication that the affiant reviewed the SHN or SDR or that these documents formed part of his or her information and belief, a request for production of the SHN and SDR becomes a fishing expedition regarding the veracity of every allegation in the affidavit, something the Supreme Court has long sought to prevent: World Bank at para 122. [ 41 ] While this investigation was apparently the first time the confidential informant had worked in this capacity, that fact alone is insufficient to raise the necessary inference that it was unreasonable for Cst.

Toma to rely on the information provided by the informant as relayed by Det. Perka. [ 42 ] I find that the Applicant has not established that these documents will be relevant to a Garofoli hearing. [ 43 ] The Applicant has also requested copies of any notes or reports made by Cst. Toma following his conversation with Det. Perka. Such documents could be relevant to the assessment of Cst. Toma’s reasonable belief. At this stage, there is no indication any such notes or reports exist. The Crown is directed to make inquiries of Cst. Toma and the SMP Unit to confirm whether or not any notes were made or written

summary provided and if so, they are ordered produced subject to vetting and redactions necessary to preserve the anonymity of the confidential informant.

2) Informant’s Criminal Record and any Outstanding Charges [ 44 ] The ITOs sworn by Cst. Toma indicate that Det. Perka advised him that the confidential informant did not have any criminal record for perjury, obstruction of justice or public mischief. The Applicant seeks disclosure of the informant’s complete criminal record as well as any outstanding charges. He argues that the information provided is misleading and is crafted so as to bolster the integrity and reliability of an unknown and unproven source. [ 45 ] There is no information before me suggesting that Cst.

Toma knew or ought to have known that this was inaccurate, or that he knew or ought to have known of information regarding the informant’s record which could raise red flags in terms of the informant’s credibility or reliability. Further, I accept Sgt. Anderson’s evidence that disclosure of the informant’s full criminal record and any outstanding charges increases the risk of that informant being identified. [ 46 ] The Applicant has not met the test for disclosure of further information regarding the informant’s criminal record or any outstanding charges. 3) Informant Control Sheet [ 47 ] Sgt.

Anderson testified that the registration kit on an informant contains all of the information which would immediately identify the informant, and therefore if it was ordered disclosed, the entire document would be redacted. [ 48 ] The Applicant has not established that Cst. Toma relied on anything that might be contained in the registration kit beyond what was conveyed by Det. Perka. I find that the Applicant has not met the test for disclosure of further information in this regard.

Based on the evidence before the Court, I am also satisfied that the nature of all of the information in the registration kit is such that it would very likely be subject to informer privilege. 4) Consideration Given to the Informant [ 49 ] The Applicant was advised that the informant was compensated financially at some point after the conclusion of the investigation. Therefore, the informant was compensated after the ITOs were sworn. [ 50 ] It is clear from the information provided that the confidential informant may well have been financially motivated to provide the information in question.

This is not an unusual situation. Financial gain can motivate people to lie, just as it can motivate them to tell the truth. There is nothing before the Court to support an inference that Cst. Toma knew or should have known that the information received from the informant was false, inaccurate or misleading because of the prospect of financial compensation, nor that he omitted to include any information he had received which was required in order to make full, fair and frank disclosure. [ 51 ] In my view, the Applicant has not met the test for disclosure of any further details with respect to compensation.

Conclusion [ 52 ] The Crown is directed to make inquiries of Cst. Toma and the SMP Unit to confirm whether or not any notes were made by Cst. Toma or written

summary provided to him and if so, they are ordered produced subject to vetting and redactions necessary to preserve the anonymity of the confidential informant. [ 53 ] The application is dismissed with respect to the other materials requested. Heard on the 14 th day of April, 2016. Dated at the City of Edmonton, Alberta this 26 th day of May, 2016. Dawn Pentelechuk J.C.Q.B.A.

Appearances: Dawn MacDonald Public Prosecution Service of Canada for the Respondent Robert H. Davidson, Q.C. Davidson Gregory Danyluik for the Applicant Stephen Lam