R. v. Mak, 2018 BCPC 288

Citation: R. v. Mak 2018 BCPC 288 Date: 20181109 File No: 233329-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal REGINA v. CAMERON MAK RULING ON APPLICATION TO REOPEN THE DISCLOSURE APPLICATION OF THE HONOURABLE JUDGE G. RIDEOUT Counsel for the Crown: T. Johnson Counsel for the Defendant: K.S. Westlake, Q.C. Place of Hearing: Vancouver , B.C. Dates of Hearing: Jan. 24, Oct. 18, 25, Nov. 1, 8, 21, 2017; Jan. 31, Aug. 3, 29, Sept. 18, 2018 Date of Ruling: November 9, 2018 A Corrigendum was released by the Court on November 19, 2018. The corrections have been made to the text and the Corrigendum is appended to this document.

I. INTRODUCTION [ 1 ] On June 3, 2015, an Information was sworn alleging that on August 27, 2013, Kaveh Soltanpour (“Soltanpour”), Charlene Flintroy (“Flintroy”) and Cameron Mak (“Mak”) were engaged in a relatively sophisticated illicit drug trafficking operation involving the distribution of heroin, cocaine, methamphetamine and morphine in the Downtown Eastside of Vancouver (the “DTES”). [ 2 ] The case for the Crown involved the granting of a search warrant in which the affiant who swore the Information to Obtain the search warrant (the “ITO”) relied, in part, on a confidential informant.

Prior to the trial commencing the three accused applied to the court for the disclosure of materials relating to the reliability of the confidential informant. [ 3 ] On May 25, 2016, in reasons for judgment found at 2016 BCPC 156 , the court dismissed the application for disclosure of information relating to the reliability of the informant. [ 4 ] Subsequently, Soltanpour pled guilty to various offences and has been sentenced. Mak retained new counsel who was not available for the dates set for trial involving Flintroy.

Accordingly, severance was granted and separate trials would proceed against Mak and Flintroy. [ 5 ] Flintroy had her trial and was acquitted of all charges on January 31, 2018, in reasons found at 2018 BCPC 15 . [ 6 ] Mak’s trial is set to proceed on November 22, 2018.

Prior to the commencement of his trial, Mak (the “applicant”) has applied to have this court reopen its ruling relating to the application for disclosure of materials respecting the reliability of the confidential informant. [ 7 ] The applicant submits that the court “misapprehended” the nature of the disclosure request and that, had the court properly understood the scope of the disclosure request, “ it is possible ” that the court would have found the applicants entitled to the disclosure sought: Written Argument, at para. 24 (emphasis added). [ 8 ] The Crown (the “respondent”) opposes the application. II.

ISSUE [ 9 ] Has the applicant met the requisite onus to justify reopening the original disclosure application? III. INVESTIGATION BACKGROUND [ 10 ] The investigation background to this case is set out in the Ruling on Application at paras. 8 - 16: 8 This case arises from an investigation by the Organized Crime

Section ("the OCS") of the Vancouver Police Department designated as "Project T-Char". 9 The OCS began their investigation in August 2013, following information they had received from the informant that: Flintroy and Mak were selling illegal drugs out of their residence at 3107-9981 Whalley Boulevard, Surrey ("the apartment") and supplying illegal drugs to the Downtown Eastside of Vancouver ("DTES"); Flintroy was selling drugs to her customers at the Sunrise Hotel in the DTES; Flintroy and Mak were using a black Acura sport-utility vehicle ("the Acura"); and the Acura was registered to Terra Marshall: ITO, at paragraph 37. 10 Through surveillance and other investigative tools, the OCS confirmed that Flintroy and Mak resided in the apartment.

Individuals believed to be drug associates, including Soltanpour, attended at the apartment. Soltanpour was also surveilled going to the Sunrise Hotel on two occasions after leaving the apartment. 11 On August 22, 2013, Mak was surveilled driving the Acura to various locations in Vancouver. He was observed making eleven brief meetings with other individuals in the course of one hour, which OCS investigators believed was consistent with drug transactions.

In relation to one of the meetings, Mak was observed holding a clear plastic bag and appeared to have conducted a hand-to-hand transaction with another man. 12 In all of the brief meetings, Flintroy and Mak were observed dealing with individuals in motor vehicles at the front of their apartment building. As a result of these observations, OCS investigators swabbed the exterior door handle of the apartment, Mak's BMW, Flintroy's Porsche Cayenne, and the Acura, for ion scans on August 22, 2013. The door handles of the apartment, the BMW, and the Acura tested positive for cocaine.

The Porsche Cayenne tested negative for cocaine. 13 On August 27, 2013, Soltanpour was surveilled travelling to the apartment from his residence. He was observed leaving the apartment and taking the Skytrain to Vancouver, where he was arrested for PPT. He was searched incidental to his arrest, and was found to be in possession of two Ziploc baggies containing individually-packaged quantities of drugs, later analyzed as heroin (34 g), powder cocaine (80 g), crack cocaine (123 g), and methamphetamine (12 g). 14 The ITO at issue in this case was submitted on August 27, 2013.

On the same date, a warrant was granted authorizing a search of the apartment. Before the warrant could be executed, Flintroy and Mak were observed leaving the apartment. Flintroy was arrested driving her Porsche Cayenne. As a result of a search following her arrest, she was found to be in possession of $10,000 in Canadian currency, and $800 in US currency. Also amongst her effects was a note mentioning Soltanpour. 15 Mak was arrested driving the Acura. Located in the back of the Acura was a gym bag containing packaging equipment and drugs.

The drugs were later analyzed as heroin (341 g), methamphetamine (290 g), and rock and powder cocaine (673 g). OCS investigators also located $4,600 in Canadian currency in Mak's possession. 16 The apartment was searched and OCS investigators located identification documents, as well as drug related documents, money

counters, scales, and a total of $78,000 in Canadian currency, $5,700 of which was in coins, and $2,300 in US currency. IV. THE TEST TO REOPEN [ 11 ] The trial judge has inherent discretion to reopen an application that was decided earlier in the proceedings: USA v. Fraser , 2015 BCSC 338 , at para. 24 . [ 12 ] This discretion should be exercised sparingly to avoid fraud and an abuse of process: USA v.

Boyachek , 2013 BCSC 1560 , at para. 55 . [ 13 ] The onus is on the applicant to demonstrate that the court should exercise its discretion to reopen the previous application: Fraser , supra , at para. 25 . [ 14 ] The threshold that must be met requires the applicant to establish on a balance of probabilities that a miscarriage of justice would probably occur unless the matter were reopened for the argument and that a change in judgment would likely occur if the matter were reopened: Fraser , supra, at para. 26 (emphasis added). [ 15 ] A miscarriage of justice generally refers to unfairness caused by an unjust process.

However, “unfairness must mean something more than the fact that a judge might have reached a different conclusion under different circumstances”: Fraser , supra , at para. 33 . [ 16 ] The onus is on the applicant to demonstrate that reopening the original application would probably have an impact on the outcome of any alleged Charter breaches or change the outcome of the s. 24(2) analysis: Ibid , at para. 38, applying R. v. Hernandez , 2008 BCSC 1473 (emphasis added) . V. POSITION OF THE PARTIES (

i) The Applicant [ 17 ] On December 2, 2015, Mak’s previous counsel filed a Notice of Application seeking disclosure of 8 items relating to the confidential informant. [ 18 ] On December 17, 2015, the court directed that the applicant provide further particulars with respect to two items contained in the disclosure request. [ 19 ] In response to the court direction, on January 15, 2016, the applicant filed a Particularized Disclosure Application (the “PDA”) in relation to the two items contained in the original Notice of Application. Those items are reproduced as follows: 2(

a) Paragraph 2(

a) is a request for the “information” Detective Powell (the source handler) was referring to in paragraph 54.8 of the ITO, where in it is stated [ sic ] that he advised the affiant (Detective Fiorda) that he verified the “information” provided by the informant through follow-up investigation and a surveillance, which proved the information reliable. We are also requesting disclosure of what follow-up surveillance was done that verified the information. 2(

b) Paragraph 2(

b) is a request for disclosure of all instances (if any) in which Detective Powell was unable to verify the information provided by the informant to follow-up investigation and surveillance (per ITO paragraph 54.8), and what investigative steps were taken on those occasions. 3.

Paragraph 3 should be narrowed to a request for disclosure of all instances known to Detective Powell, or to the affiant Detective Fiorda of the informant providing information to police, and of police being able to verify that information per paragraph 54.10 of the ITO (including, but not limited to, the instances listed there in). [ 20 ] Paragraphs 54.8 and 54.10 of the ITO contain specific claims made by Detective Powell and relied upon by the ITO affiant. The two paragraphs are re-produced as follows: 54.8.

While information from informant “A” did not always result in criminal charges or search warrants, Detective POWELL believes informant ”A” is reliable because Detective POWELL was able to verify the information through follow-up investigation and surveillance, which proved the information to be reliable; …. 54.10. The confidential information provided by informant “A” has resulted in but is not limited to the following: 54.10.1. The arrest of persons responsible for the possession of a controlled substance for the purposes of trafficking; 54.10.2.

The execution of a CDSA search warrant, the arrests of multiple people, the seizure of multiple kilograms of cocaine and over $50,000 in cash; [ 21 ] The applicant submits that the PDA was not a request for all information ever received by the police from informant “A”. Rather, the PDA refines the scope to the specific claims relied upon by the affiant in the ITO. [ 22 ] The applicant’s argument points to three broad characterizations made by the court in its ruling as indicating a misapprehension: 1. Characterization of the request as asking for “all informant related information” (Issue 1); 2.

Characterization of the request as asking for “irrelevant material”, (Issue 2); and

Characterization of the request as asking for “a [potentially] large amount of material” (Issue 3). [ 23 ] If the application to reopen the original disclosure application is granted, the applicant would be seeking information “both in number and in type" of information that would tend to corroborate the reliability of the confidential informant: Transcript, September 18, 2018, pp. 32 and 33. [ 24 ] Additionally, the applicant seeks disclosure, specifically from Detective Powell, or generally from the police, verifying the information they received from the confidential informant: ibid , at pp. 34 and 35. [ 25 ] The applicant explained that the goal is to determine the quality of the information received from the confidential informant. [ 26 ] For example, was the information “general” and thus relatively widely available, such as that a certain individual “drives a black Mercedes”: ibid , at p. 34. [ 27 ] Or, was the information specific, such as, “this amount of drugs can be found at this specific address”: ibid , at p. 35. [ 28 ] The applicant described a further scenario in which information would be provided but would not identify the confidential informant: So you start with "We received information in" -- and I'll just make up numbers, Your Honour -- "twelve cases, and we in case number 1 we were able to -- we got told specifics about the amount of drugs that a person was having, the -- where it was located at a specific address, "and we did surveillance and we saw this specifically identified person go to that specific address on six occasions, and on the fifth occasion we saw immediately.

We stopped him and we found in fact the drugs that were described that we were told that he would have by the informant." (Transcript, September 18, 2018, p. 35, ll. 37-47; p. 36, l. 1) (ii) Position of the Respondent [ 29 ] The respondent submits that the applicant has not met the onus to justify a reopening of its disclosure ruling as there is no or an insufficient basis for a potential miscarriage of justice. [ 30 ] The respondent submits that if the court was to find a misapprehension of the PDA, which the respondent denies occurring in this case, the subsequent developments in the law are fatal to the application to reopen. [ 31 ] In particular, the respondent submits that the ruling by the British Columbia Court of Appeal in R. v.

McKay , 2016 BCCA 391 , leave to appeal to the SCC refused April 20, 2017, is dispositive of this application and it ought to be dismissed. VI. ANALYSIS (

i) Issue 1 [ 32 ] The PDA notes that the information requested in 2(

a) is information that Detective Powell received from informant “A” that Detective Powell subsequently verified. This wording suggests that this “information” requested in the PDA refers to “leads”. [ 33 ] This would be consistent with the court ruling which notes “… all informant related information, including leads provided to Detective Powell by the informant, and information relating to follow-up investigation and surveillance”: para. 55. [ 34 ] While the scope of the disclosure request contained in 2(

a) of the PDA may be narrower than found by the court, this does not establish a misapprehension of the disclosure request. [ 35 ] The applicant has submitted that if the court had “properly” understood the scope of the applicant’s request, it is “possible” that the court would have come to a contrary decision.

The test to reopen requires proof on a balance of probabilities, not possibilities. [ 36 ] In its original ruling, the court found that the reliability of a confidential informant is assessed by the authorizing justice on the basis of the material contained in the ITO: para. 46. [ 37 ] The court emphasized that the most significant confirmation of reliability is whether the information provided in the present case was corroborated in this investigation: para. 52. [ 38 ] The court found that the information provided to the police by the confidential informant corroborated evidence the police gathered from surveillance and other investigative tools which established the reliability of the confidential informant: ibid . [ 39 ] The court concluded that “… the applicant’s entitlement to disclosure of informant related materials goes no further than the disclosure of the information put before the authorizing justice in relation to the informant reliability…” and found that the requested material is “clearly irrelevant”: paras. 54-56. [ 40 ] Based on the foregoing, it cannot be said that the applicant has established that there was a misapprehension of the disclosure request relating to this issue. [ 41 ] Even if the court was to find that there was a misapprehension of this issue, the applicant has failed to establish that there would likely be any change to the original disclosure ruling. (ii) Issue 2

[ 42 ] In its ruling on May 25, 2016, the court considered the question of relevance at paras. 37 - 38. At paras. 47 - 51, the court considered the jurisprudential argument of whether ‘”relevance” in confidential informant cases goes beyond what is in front of the authorizing justice as contained in the ITO. [ 43 ] The relevance threshold for disclosing source handler notes (“SHN”) and/or source debriefing reports (“SDR”) in relation to a confidential informant will not be met by the fact that disclosing confidential informant information to the applicant could potentially reveal relevant information: R. v.

Robertson , BCSC 2075, at para. 35. [ 44 ] Even if the applicant establishes relevance, the confidential informant information would be protected by informer privilege and cannot be outweighed by the applicant’s right to full answer and defence; ibid , at paras. 37 - 42. [ 45 ] Additionally, the applicant has failed to establish that paragraphs 54.8 and 54.10 of the ITO support an inference that undermines the reliability of the information provided to the affiant by Det.

Powell. [ 46 ] This finding is particularly persuasive in this case as the applicant has not established that there is any apparent inconsistency or discrepancy in the ITO, and there is no indication that the affiant reviewed the SHN or SDR or that these documents formed part of his information and belief. (iii) Issue 3 [ 47 ] In its ruling on May 25, 2016, the court considered the question of the potential for disclosure of a “very large quantity of clearly irrelevant material” with respect to items 2 and 3 of the PDA, at paras. 55 - 56. [ 48 ] The applicant seeks disclosure of information about leads provided by the confidential informant who has been aiding the police since 2007.

The applicant further seeks information about surveillance and the results of surveillance done to follow up on those leads. [ 49 ] If the court was to grant the application to reopen the original disclosure application, it would likely lead to further disclosure requests relating to the confidential informant. The quest for disclosure regarding the veracity of the confidential informant would become a “fishing expedition”, which the Supreme Court of Canada has long sought to prevent: World Bank Group v.

Wallace , 2016 SCC 15 , at para. 122 . (iv) Would the Requested Disclosure Tend to Identify the Confidential Informant? [ 50 ] Constable Bill Nadalin of the Vancouver Police Department (the “VPD”) is a Source Coordinator in the Human Source Handling Unit (the “HSHU”).

Constable Nadalin has held this position since November 2011. [ 51 ] In his filed affidavit sworn on December 16, 2015, he describes the HSHU’s role and responsibility in creating and handling information pertaining to informants who have provided information to the VPD. [ 52 ] At paragraph 4 of his affidavit, he describes the environment of human source handling. That paragraph is reproduced as follows: 4. Human source handling is a constantly changing environment. Recent developments in case law and legislation make this one of the more complex areas of policing.

Informant handling is a high risk activity for the Informant, handlers and the VPD and for this reason members must report all informant handling to HSHU. In order to address the high risk nature of Informant handling the HSHU was created within the VPD. Police have both the legal and moral obligation to protect the identity of Informants. [ 53 ] At paragraph 38 of his affidavit, he describes what information may tend to identify confidential informants. That paragraph is reproduced as follows: 38. Informant information held by the HSHU that may tend to identify the Informant includes: a. Name and address; b.

Length of time that the Informant has been reporting; c. Personal background (single, married, drug addiction or mental health issues, aliases, nicknames, tattoos, physical characteristics); d. Criminal background (convictions, outstanding matters before the Court); e. Dates on which the Informant has provided information to the handler(s); f. Location of the debriefing; g. Detailed documentation in the handler notebook of the information provided to the handler that includes: i. The source of the knowledge; ii. Who else is believed to know the information; iii.

If the police took action on the information and the results; iv. Information about individuals, businesses, or criminal activity that have occurred, are occurring or

are yet to be carried out; h. Amounts and dates of reward and expense payments for information provided; i. Phone number(s). [ 54 ] At paragraph 39, he warns of a “mosaic effect” where a reader, especially a knowledgeable one, could put together seemingly innocuous facts to identify a confidential informant. This effect could still take place despite a careful vetting or redaction. [ 55 ] The affidavit of Detective Nadalin is credible and reliable evidence.

The contents of the affidavit support the position taken by the respondent that the court ought not to reopen the original disclosure application. [ 56 ] If the court were to reopen the original disclosure application, and grant the disclosure requests of the applicant, such a result is not without risk.

For example, disclosing that a confidential informant was involved in two wiretap investigations and a surveillance investigation in which the confidential informant knew one or more of the persons arrested may tend to identify the confidential informant, particularly if the person piecing together the puzzle is a higher level organized crime member. [ 57 ] The emphasis must be on prohibiting disclosure of any information which may tend to reveal the identity of a confidential informant. Even if the requested information was found relevant, it remains privileged.

Subject only to the innocence at stake exception, information that may tend to reveal the identity of a confidential informant cannot be disclosed: McKay , supra , at paras. 147 - 159 . [ 58 ] The applicant has not advanced the innocence at stake exception. VII.

CONCLUSION [ 59 ] The applicant has failed to establish on a balance of probabilities that a miscarriage of justice would probably occur unless the original disclosure application were reopened. [ 60 ] The applicant has failed to establish that there would likely be a change in the court’s ruling pronounced on May 25, 2016, if the application to reopen the original disclosure application were granted. [ 61 ] The application is dismissed. _____________________________ The Honourable Judge G.

Rideout Provincial Court of British Columbia CORRIGENDUM - Released November 19, 2018 In my Ruling dated November 9, 2018, the following change has been made: [ 62 ] On page 4, paragraph 15, first sentence, the word “unadjusted” should read “un-just”. The sentence should now read as follows: [15] A miscarriage of justice generally refers to unfairness caused by an unjust process. _____________________________ The Honourable Judge G. Rideout Provincial Court of British Columbia