Her Majesty the Queen - v. -, 2013 SKPC 52

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 052 Date: April 3, 2013 Information: 39986918, 39986919, 39986921 and 39986922 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Justin Edward Groshok Appearing: Crystal Warde For the Crown Jeremy Guild For the Accused DECISION ON DISCLOSURE APPLICATION D.E.

LABACH , J INTRODUCTION [ 1 ] As a result of a search warrant that was executed at his residence in Saskatoon on September 22nd, 2012, the accused, Justin Edward Groshok, was charged on four separate Informations with 31 offences involving drugs, weapons, and breaches of an undertaking. On the sixteen charges on Informations 39986918 and 39986919 he was jointly charged with Edward Metro Groshok. On the fifteen remaining charges on 39986921 and 39986922, he was charged alone.

[ 2 ] Constable Tryon was the affiant who swore the Information to Obtain a Search Warrant and Sealing Order (the “ITO”) in support of this search warrant. A vetted version of the ITO was disclosed to the Defence on November 8th, 2012. In the ITO there was reference to a confidential human source No. 1 and the information he provided to Constable Pellerin, who in turn passed it on to Constable Tryon. [ 3 ] On February 13th, 2013, Defence counsel for Justin Groshok filed a pretrial motion with the Court alleging that the accused’s

section 7 Charter right to make full answer and defence had been violated as a result of the non-disclosure of certain material by the Crown . This motion was not advanced by Edward Metro Groshok and neither he nor his counsel took any

part in the application. Specifically, the Notice of Application filed by Justin Groshok’s counsel asked the Court to make an order for disclosure of:

a) the details of the information provided to Constable B. Pellerin by a confidential source described as Source #1 in an Information to Obtain a Search Warrant and Sealing Order in this matter dated September 21, 2012 (“ITO”), a copy of which is attached to this notice, redacted only as required to protect the identity of Source #1;

b) copies of the originals of notes and any and all written or recorded material relating to the information provided by Source #1 in this matter, redacted only as required to protect the identity of Source #1;

c) the basis for the claim that Source #1 “has proven a reliable source throughout multiple investigations” as set out in paragraph 3.1(

c) of the ITO;

d) the criminal record of Source #1;

e) copies of the originals of notes and any and all written or recorded material relating to the information provided by Constable B. Pellerin to Constable Kelly Tryon regarding the information provided by Source #1;

f) a copy of the Police Report read by Constable M. Walz as set out in paragraph 3.11 of the ITO;

g) a copy of any notes or recorded material not yet disclosed, made by Constable M. Walz relating to the information contained in paragraph 3.11 of the ITO, including any notes of any conversation he had with Constable Kelly Tryon and copies of CPIC messages;

h) a copy of the Police Report and any other material read by Constable Kelly Tryon as set out in paragraph. 3.14 of the ITO;

i) a copy of any notes or recorded material not yet disclosed, made by Constable Kelly Tryon relating to the information contained in paragraph 3.14 of the ITO, including copies of CPIC messages. [ 4 ] At the outset of the hearing on February 28th, 2013, Defence advised that he was abandoning his request for disclosure of items (

d) to (

i) inclusive. According to him, the Crown had recently provided him disclosure in satisfaction of these items as well as a revised vetted version of the ITO. [ 5 ] No evidence was called by either the Crown or Defence on the application. Instead, by agreement of counsel, the revised vetted copy of the Information sworn to Obtain the Search Warrant and a copy of one page of handwritten notes of the affiant, Constable Tryon, were placed before me. The application then proceeded by way of oral argument.

[6] It was the Defence position that he was entitled to disclosure of items (a), (

b) and (

c) because in his view, there wereinconsistencies in what Constable Tryon swore to in the ITO about Source No. 1 and his one page of handwritten notes. He contendedthat disclosure of the information provided to Constable Pellerin or any other police officer by the confidential Source No. 1 wasnecessary to see if there was an explanation for these inconsistencies. If there was not then this would assist the accused in challengingthe validity of the search warrant. He argued that this disclosure was important to determine the case the Defence needed to meet as wellas how they would conduct their case.

He also took the position that the Crown had waived privilege in relation to this disclosure whenthey had provided the Defence with a copy of Constable Tryon’s handwritten notes. Since the material was both relevant to theaccused’s defence and privilege was waived, the material was disclosable. [7] After hearing the Defence argument as to why these remaining materials should be disclosed, Crown requested a short recessto reconsider her position. Upon return Defence advised that he was now abandoning his request for disclosure of item (c).

The Crownadvised that she was still opposed to disclosing the material being requested in items (

a) and (b). [8] The Crown’s position was simply that the requested material was not only irrelevant but in any event, protected by informerprivilege. According to her, the Defence had failed to show that the accused fell within the “innocence at stake” exception or thatprivilege was waived and as such, the Crown was under no obligation to disclose the requested material. [9] I adjourned my decision to March 21st, 2013. In the course of preparing my decision, I determined that I should review the disclosure in question.

As a result, on March 21st, I ordered the Crown to provide me with the disclosure the Defence was seeking. They have since done so and I have reviewed the material they have provided. [10] For the reasons that follow, I have determined that the Defence is not entitled to disclosure of items (

a) and (

b) as set forth inhis Notice of Application. ANALYSIS [11] In R. v. Stinchcomb, (SCC), [1991] 3 S.C.R. 326 (S.C.C.), the seminal case on the Crown’s duty to disclose,the Supreme Court of Canada recognized that the accused’s right to make full answer and defence to the charges he is facing is one ofthe pillars of our criminal justice system and is one of the principles of fundamental justice included under

section 7 of the CanadianCharter of Rights and Freedoms. [12] In Stinchcomb, Mr. Justice Sopinka, said that the Crown has an obligation to disclose all relevant information in its possessionrelating to their case against an accused whether they intend to adduce it at trial or not including any evidence that may assist theaccused. They must do it early enough to leave the accused adequate time to take any steps they wish to take to make full answer anddefence. [13] This obligation to disclose is not absolute but is subject to the discretion of Crown counsel.

Information that is irrelevant orprivileged need not be produced. This discretion is reviewable by a trial judge on a voir dire, and while it is a Defence application, theCrown bears the burden of justifying the non-disclosure. In speaking about the privilege exception, Mr. Justice Sopinka gave thefollowing example at paragraph 20: [20] . . . . counsel for the Crown has a duty to respect the rules of privilege. In the case of informers the Crown has a duty to protect theiridentity.

In some cases serious prejudice or even harm may result to a person who has supplied evidence or information to theinvestigation. . . . [14] In R. v. Scott, (SCC), [1990] 3 S.C.R. 979 (S.C.C.) Mr. Justice Cory discussed the informer privilegeexception in light of the Crown’s common law duty to disclose. He said:

[31] The value of informers to police investigations has long been recognized. As long as crimes have been committed, certainly as longas they have been prosecuted, informers have played an important role in their investigation. It may well be true that some informers actfor compensation or for self-serving purposes. Whatever their motives, the position of informers is always precarious and their role isfraught with danger. [32] The role of informers in drug related cases is particularly important and dangerous.

Informers often provide the only means for thepolice to gain some knowledge of the workings of drug trafficking operations and networks. . . . . The investigation often will be basedupon a relationship of trust between the police officer and the informer, something that may take a long time to establish. The safety,indeed the lives, not only of the informers but also of the undercover police officers will depend on that relationship of trust. . . . . [34] The need to protect the identity of an informer has long been recognized by the courts of Canada and other jurisdictions.

TheOntario Court of Appeal set out some of the reasons for maintaining this protection in Hunter, supra, at page 18: The rule against non-disclosure of information which might identify an informer is one of long standing. It developed from anacceptance of the role of informers in the solution of crimes and the apprehension of criminals. It was recognized that citizens have aduty to divulge to the police any information that they may have pertaining to the commission of a crime.

It was also obvious to thecourts from very early times that the identity of an informer would have to be concealed both for his or her own protection, and toencourage others to divulge to the authorities any information pertaining to crimes. It was in order to achieve these goals that the rulewas developed. [15] While accepting that the need to protect the identity of police informants is very high, Mr. Justice Cory still recognized thatthe right of an individual accused to establish his innocence must remain paramount.

As a result, he determined that the informerprivilege rule was subject to an exception, referred to as the “innocence at stake” exception. If the accused could establish a basis for hisinnocence being at stake then that would trump informer privilege and the information should be disclosed. In his view, there were threeways to establish the “innocence at stake” exception: [38] Certainly, if the informer is a material witness to the crime then his or her identity must be revealed. In Roviaro v.

United States,353 U.S. 53 (1957), the United States Supreme Court held that the informer’s identity would be divulged if the informer was a materialwitness. Canadian courts have very properly followed the same path in circumstances where the informer is the only material witness tothe crime: See: R. v. Davies (1982), (ON CA), 1 C.C.C. (3d) 299 (Ont. C.A.) [39] An exception should also be made where the informer has acted as agent provocateur. For example, in R. v. Davies, supra, theinformer not only introduced the police to the accused, but also played an instrumental role in the trafficking scheme itself.

In thosecircumstances, his identity had to be revealed. This exception could be properly extended to cases where the accused intends to relyupon the defence of entrapment. However, in order to rely on this exception, the accused will, as a general rule, be required to establishsome evidentiary basis for the defence. [40] A third exception may exist where the accused seeks to establish that the search was not undertaken on reasonable grounds andtherefore contravened the provisions of

section 8 of the Charter. Even under these conditions, a court should strive to provide as muchevidence as possible to the defence by means of editing the information on which the search warrant was based without disclosing theidentity of the informer. That disclosure should only be made in circumstances where it is absolutely essential: See R. v. Hunter, supra. [16] In R. v.

Leipert, (SCC), [1997] 1 S.C.R. 281 (S.C.C.), Madam Justice McLachlin stated that when a court isconsidering the issue of informer privilege, they must begin from the proposition that the privilege is an ancient and hallowed protectionwhich plays a vital role in law enforcement. It is of such importance that it cannot be balanced against other interests and onceestablished, neither the police nor the court possesses discretion to abridge it.

She found that informer privilege is broad in scope andprevents not only disclosure of the name of the informant, but of any information which might implicitly reveal his or her identity. [17] As had Cory J. before her, Madame Justice McLachlin found that informer privilege is subject only to the “innocence atstake” exception. She had this to say about the exception:

[21] In order to raise the “innocence at stake” exception to informer privilege, there must be a basis on the evidence for concluding thatdisclosure of the informer’s identity is necessary to demonstrate the innocence of the accused: R. v. Chiarantano, [1990] O.J. No. 2603(C.A.), per Brooke J.A., aff’d (SCC), [1991] 1 S.C.R. 906.

In Chiarantano, the possibility that the informationprovided by the informer regarding the arrival at a residence of drugs later found in the possession of the accused might conflict with theevidence of the accused was held not to raise a basis for disclosure pursuant to the “innocence at stake” exception. The court held thatthe usefulness of the information was speculative and that mere speculation that the information might assist the defence is insufficient.

If speculation sufficed to remove the privilege, little if anything would be left of the protection which the privilege purports to accord. [22] On the other hand, circumstances may arise where the evidence establishes a basis for the exception, as where the informer is amaterial witness to the crime or acted as an agent provocateur: See Scott, supra.

Where such a basis is established, the privilege mustyield to the principle that a person is not to be condemned when his or her innocence can be proved. . . . . [26] Where the accused seeks to establish that a search warrant was not supported by reasonable grounds, the accused may be entitled toinformation which may reveal the identity of an informer notwithstanding informer privilege “in circumstances where it is absolutelyessential”: Scott, supra, at p. 996. “Essential” circumstances exist where the accused establishes the “innocence at stake” exception toinformer privilege.

Such a case might arise, for example, where there is evidence suggesting that the goods seized in execution of thewarrant were planted.

To establish that the informer planted the goods or had information as to how they came to be planted, theaccused might properly seek disclosure of information that may incidentally reveal the identity of the informer. [27] Absent a basis for concluding that disclosure of the information that may reveal the identity of the informer is necessary to establishthe innocence of the accused, the information remains privileged and cannot be produced, whether on a hearing into the reasonablenessof the search or on the trial proper. [18] Finally, at paragraph 33 of Leipert, supra, she set down the procedure that the courts should follow when faced with anargument that the “innocence at stake” exception applies: [33] When an accused seeks disclosure of privileged informer information on the basis of the “innocence at stake” exception, thefollowing procedure will apply.

First, the accused must show some basis to conclude that without the disclosure sought his or herinnocence is at stake. If such a basis is shown, the court may then review the information to determine whether, in fact, the informationis necessary to prove the accused’s innocence. If the court concludes that disclosure is necessary, the court should only reveal as muchinformation as is essential to allow proof of innocence. Before disclosing the information to the accused, the Crown should be given theoption of staying the proceedings.

If the Crown chooses to proceed, disclosure of the information essential to establish innocence maybe provided to the accused. [19] Applying this procedure to the present case Defence counsel has not shown me a basis upon which I could conclude that theaccused falls within the “innocence at stake” exception. Specifically there is no evidentiary basis that confidential Source No.1 was amaterial witness to the crimes with which the accused has been charged or that Source No.1 acted as an agent provocateur.

Defencecounsel has alluded to the possibility that at trial he may want to challenge the basis for the search warrant issued in this case and assuch, may be making a Garofoli application to be allowed to cross-examine Constable Tryon, the affiant on the ITO. In his view, therewere some discrepancies between the vetted ITO and Constable Tryon’s handwritten notes about his conversation with ConstablePellerin, confidential Source No.1’s police handler.

These perceived inconsistencies he argued, amounted to misleading evidence orpossibly fraud and as such, he should be allowed to pierce the veil of informer privilege and view Constable Pellerin’s notes of hisconversations with Source No.1 and any other information that Source No.1 provided to Constable Pellerin or any other officer to see ifthere is a basis for his concerns.

Defence made it clear that he is not looking for information that will identify Source No.1 and if therewas any such information in the material he was requesting, it could be redacted. [20] I appreciate Defence counsel’s comments that he is not looking for the identity of Source No.1 however that is part of the

reason why material such as what is being requested in this case is so sacrosanct. Even redacted material may reveal the identity of aninformant. As a result, the rule must be strictly applied so as not to result in the inadvertent discovery of the informer. The Court musttake the protection of this information very seriously as it is of “fundamental importance to the workings of the criminal justice system”: See Leipert, supra at para. 10. [21] In this case, I have been provided with a copy of Constable Tryon’s ITO and his handwritten notes disclosed to Defence.

Ihave carefully reviewed them and with the greatest of respect to Defence counsel, the inconsistencies he refers to are minor at best. There is an apparent misspelling of the accused’s girlfriend’s last name and an indication in the ITO that she sells cocaine but there isnothing to that effect in Constable Tryon’s notes. These are not significant in my opinion. Where there is an inadvertent error in theITO, the Information may still provide sufficient evidence to permit the warrant to be issued. In this case, Constable Tryon’s notes arejust jot notes of the conversation he was having with Constable Pellerin.

They are not detailed. They do not conflict with what he put inthe ITO; there just does not appear to be anything in his notes to support his statement in the ITO that the accused’s girlfriend sellscocaine. This may be information Pellerin told him that he did not write down. As such, it is not an inconsistency. There is no evidencethat any information in the ITO about the accused is inconsistent with Constable Tryon’s handwritten notes.

And there is no evidencethat would allow me to conclude that disclosure of the requested material is necessary to demonstrate the innocence of the accused. [22] Further after hearing argument, I was left with the impression that Defence had not yet made a final decision on whether hewanted to take issue with the search warrant that was executed at the accused’s residence.

The fact that he argued that these sourcehandler’s notes may or may not explain the perceived inconsistencies he noted in Constable Tryon’s sworn ITO and his handwrittennotes and that if it was the latter, it would assist in a Garofoli application, leads me to conclude that this is nothing more than a fishingexpedition on the part of Defence. On that basis as well, the Defence request fails.

However, even if Defence was sure that he wasgoing to challenge the validity of the search warrant, informer privilege will not be breached simply to facilitate an attack on thecredibility of the affiant who swore the information to obtain the search warrant. This was the decision of the British Columbia Court ofAppeal in R v. Barzal (1993) (BC CA), 84 C.C.C. (3d) 289.

In overturning the lower courts decision orderingproduction of the police debriefing notes relating to informers, the Court of Appeal said: [44] In this case the accused wanted access to the debriefing notes in order to test the reliability of the informers. A detailed inquiry intopolice files is not required for that purpose. Sufficient reliability is established, or is not established, by reference to the material filed insupport of an application for an authorization. The right to make full answer and defence in this context is a right to the disclosure ofmaterial which had been before the authorizing judge.

It is not a right to embark on a fishing expedition of all the material in thepossession of the police. Such an enquiry could be endless, including access to police files, cross examination of police officers, crossexamination of informants (which is not permitted; Garofoli at page 1465), and consideration of the details of each case in which theinformer had been involved. [23] In this case, Defence has both a vetted copy of Constable Tryon’s ITO as well as a copy of his handwritten notes of hisdiscussions with Constable Pellerin regarding the information provided by Source No.1.

It was from these notes that Constable Tryonprepared a portion of the ITO. If Defence has identified inconsistencies between the two sets of information he is free to pursue anapplication for leave to cross-examine Constable Tryon on his ITO and attempt to expose these inconsistencies.

Otherwise this hasnothing to do with the information given by Source No.1 to Constable Pellerin as Constable Pellerin’s notes are not before theauthorizing judge. [24] Thus, I am not satisfied that the Defence is able to fall within the “innocence at stake” exception that would defeat the rule ofinformer privilege and allow for disclosure of the information he is requesting. [25] There remains the defence argument that the Crown and confidential Source No.1 have waived privilege in this case bydisclosing to the Defence the redacted ITO and the notes of Constable Tryon.

In their view, all this information came from thediscussion Constable Tryon had with Constable Pellerin, Source No.1’s handler, who made these notes in conversation with confidentialSource No.1.

They would like Constable Pellerin’s notes and any information Source No.1 may have provided to Constable Pellerin orany other police officer so they can test the most accurate recording of the information against Constable Tryon’s notes and theinformation he gleaned out of those notes and swore to in his affidavit to obtain the search warrant in this case. [26] It is an interesting argument but in my view it too must fail. Firstly, the Crown cannot, without the consent of confidentialSource No.1, waive privilege.

The Crown has not advised that they obtained Source No.1’s consent to release the requested informationto the Defence. Indeed, by the very fact the Crown is disputing the Defence application for this information leads me to conclude thatneither the Crown nor confidential Source No.1 is consenting to Constable Pellerin’s notes or any other information from Source No.1 toConstable Pellerin or anyone else being released to the Defence.

[ 27 ] Secondly, I am not convinced that the Crown and confidential Source No.1 have implicitly waived privilege in this case by disclosing a vetted copy of Constable Tryon’s handwritten notes and a redacted copy of the ITO to the Defence. For there to be an operative waiver of informer privilege, it must be clear, express and informed. See R v. Sandham, [2008] O.J. No. 5804 (S.C.J.) at para. 29 quoting from R v. Schertzer, [2008] O.J. No. 245 (S.C.J.) at para. 8 .

There is no indication in this case that there was an unequivocal, informed waiver by confidential source No.1 of his conversation with Constable Pellerin or with any other officer. Given the importance placed on informer privilege by the courts, it would be absurd if the protection of that privilege could be lost by a police officer discussing the informer’s information with another police officer who then uses that information in a manner that requires it to be disclosed to Defence counsel, albeit in redacted form.

CONCLUSION [ 28 ] There is no basis for me to conclude that the information requested by the Defence in items (

a) and (

b) in their Notice of Application, more specifically, the notes of Constable Pellerin in relation to his discussions with Confidential Source No.1 or any other material provided by Source No.1 to Constable Pellerin or to any other police officer, is necessary to prove the innocence of the accused and as such, this information remains privileged and cannot be produced. I am also satisfied that the Crown and the confidential Source No.1 have not waived privilege, either explicitly or implicitly and as such, the information remains within the realm of informer privilege. The accused’s

section 7 Charter right to make full answer and defence has not been violated in this particular case and as a result, the Defence disclosure application is dismissed. _________________________ D.E. Labach, J.