R. v. Hjerpe Date:, 2016 BCPC 248

Citation: R. v. Hjerpe Date: 20160815 2016 BCPC 248 File No: 48658-1 Registry: Vernon IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. CHRISTOPHER EDVIN OMAR HJERPE RULING ON APPLICATION OF THE HONOURABLE JUDGE MCKIMM Counsel for the Crown: A.R. Clarkson Counsel for the Defendant: N.L. Cobb Place of Hearing: Vernon , B.C. Date of Hearing: May 27, 2016 Date of Judgment: August 15, 2016

Summary [ 1 ] This is a pre-trial application for an order that the Court review in camera , and in the absence of the accused, the disclosure material which has been vetted by the Crown to protect informer privilege. For the reasons that follow, that application is granted. Facts [ 2 ] Mr. Hjerpe is charged with possessing cocaine and heroin for the purpose of trafficking. The offenses are alleged to have taken place on February 25, 2014.

Prior to the date of arrest, the police had received certain confidential information from a confidential informant indicating that a particular motor vehicle was being used in the area to deliver narcotics. In furtherance of the investigation, the police conducted surveillance of approximately an hour, and followed the vehicle in question for some time. During the course of that surveillance, the vehicle was observed to drive around the community and make a number of brief stops, which the officers believed were consistent with drug transactions.

Individuals were observed to enter and leave the car for brief periods of time in areas well known for drug trafficking. [ 3 ] After observing a number of such stops and meetings the officer in charge determined that they had acquired enough evidence to form reasonable and probable grounds to believe that the driver of the vehicle was trafficking narcotics. These observations were consistent with the information they had received from the confidential informant. The vehicle was stopped and the driver and passenger were immediately arrested. A warrantless search was conducted incident to that arrest. Mr.

Hjerpe was the driver of the vehicle. [ 4 ] When Mr. Hjerpe was arrested, he was found to have two cell phones in his lap. A search of the interior of the vehicle was done and produced a package of crack cocaine containing 21 individually wrapped packages, a bottle containing 18 oxycodone, a package of heroin with nine individually wrapped packages, two additional rocks of crack cocaine, three cell phones and $1,800.00 in cash. [ 5 ] Mr. Hjerpe objects to the admission of the evidence found as a result of the search. He has properly filed notice with the Crown alleging that his rights under

section eight of the Charter have been infringed, and seeking relief of exclusion of the evidence under section 24(2) of the Charter. He has sought disclosure of the evidence that the Crown intends to use in this matter. The Crown has complied with his disclosure request so far and has provided partial disclosure. What remains to be disclosed is evidence relied on by the investigators that they received from the confidential informant. [ 6 ] All confidential informants are controlled by a handler.

This handler is tasked with making detailed notes of all of his or her interactions with the confidential informant, and these notes are kept in a log. These notes are kept closely and securely guarded in a central depository. Only police officers, with a high security rating, are allowed access to these handler’s notes and logs. As part of their disclosure on this matter, the Crown has disclosed the handler’s notes for this confidential informant, but those notes have been heavily redacted. The Crown alleges that disclosure of that material is not possible because of the need to protect informer privilege.

The disclosed material contains fourty pages that are completely blacked out, and fifteen pages that have a very small proportion of their contents disclosed. Much of that disclosure appears to be duplicates from different sources, but the court is unable to determine that without reviewing the unedited material. Certainly the small volume of disclosure material in question pales in comparison to the volumes of material filed by both parties in response to this application.. [ 7 ] The Crown has not provided Mr. Hjerpe a precis or even a description of the material contained behind the edits.

Neither the defence nor the court has any way to determine if the assertion of informer privilege claimed by the Crown is made out. [ 8 ] The vetting process, in this case, has been undertaken carefully and thoroughly, initially by the officers tasked with handling informer information and then ultimately by the crown counsel who completed the final review of the edits to ensure that they complied as much as possible both with the need to make full and complete disclosure, and also to protect the identity of the informant.

In an expansive affidavit, filed by Staff Sergeant John Cater, the Crown has certainly established that confidential informers are essential to effective police work. The work of these informants is zealously guarded to protect any risk of the accidental release of their identity. Issue [ 9 ] Should the court review the unedited disclosure material to ensure that the claim of privilege is valid and whether the vetting process has been completed in such a way as to balance the competing needs for full disclosure and to protect the identity of the informant or informants?

Discussion [ 10 ] In this case the Defence seeks disclosure of material that is relevant and goes directly to a matter in issue: Did the police have reasonable and probable grounds to arrest and search Mr. Hjerpe? It is axiomatic that the burden to make full and complete disclosure rests entirely with the Crown, and most important, that a failure to make full disclosure impedes the ability of the accused to make full

answer and defence. 17 ...The right to make full answer and defence is one of the pillars of criminal justice on which we heavily depend to ensure that theinnocent are not convicted. Recent events have demonstrated that the erosion of this right due to nondisclosure was an important factorin the conviction and incarceration of an innocent person. In the Royal Commission on Donald Marshall, Jr., Prosecution, Vol.1:Findings and Recommendations (1989) (the Marshal Commission Report), the Commissioners found that prior inconsistent statementswere not disclosed to the defense.

This was an important contributing factor in the miscarriage of justice which occurred and led thecommission to state that "anything less than complete disclosure by the crown falls short of decency and fair play" [Vol. 1 @ P. 238) R. v. Stinchcomb (1991) (SCC), 3 S.C.R. 326 [11] As a result the Supreme Court of Canada crafted the disclosure rules which continue to govern criminal process to this day.

Inthat case it concluded that there was a general duty on the part of the crown to make full disclosure of not only the evidence it proposedto call at trial but brother all material evidence whether favorable to the accused or not. Stinchcomb @ para. 19 [12] The court also noted that disclosure and the right to production of evidence is not an absolute right but rather one which issubject to the discretion of the crown to not disclose information which is "clearly irrelevant" or information which should not bedisclosed as a result of a rule of privilege.

It must be remembered, however, that the court went on to articulate that the discretionexercised by crown counsel in this regard is ultimately reviewable by the Court. 21 The discretion of crown counsel is, however, reviewable by the trial judge. Counsel for the defence can initiate a review when anissue arises with respect to the exercise of the Crown's discretion. On a review the crown must justify its refusal to disclose.

Inasmuchas disclosure of all relevant information is the general rule, the Crown must bring itself within an exception to that rule. 22 The trial judge on a review should be guided by the general principle that information ought not to be withheld if there is areasonable possibility that the withholding of information will impair the right of the accused to make full answer and defense, unless thenondisclosure is justified by the law privilege.

The trial judge might also, in certain circumstances, concluded the recognition of anexisting privilege does not constitute a reasonable limit on the constitutional right to make full answer and defense and thus requiredisclosure in spite of the law privilege. The trial judge may also review the decision of the crown to withhold or delay production ofinformation by reason of concern for the security or safety of witnesses or persons who supplied information to the investigation.

Insuch circumstances, while much weight must be accorded to the exercise of the discretion of the counsel for the Crown with respect tothe manner and timing of the disclosure, the absolute withholding of information which is relevant to the defense can only be justified onthe basis of the existence of a legal privilege which excludes the information from disclosure. Stinchcomb (1991) (SCC), 3 S.C.R. 326 [13] It is apparent, from these remarks, that the Supreme Court of Canada anticipated a meaningful involvement of the court in thedisclosure process.

The “reasonable possibility” language is referring to after the review has been initiated, not as a preconditionevidentiary precondition to the review. [14] Most recently the trial courts and in particular our Supreme Court has determined that the confidential informant informationwhich comprises and supports the grounds for a search must be disclosed under a Stinchcomb analysis. In R. v.

Edwardsen 2015 BCSC705 the court concluded, over Crown's objection, that source handler notes and informant debriefing material are all matters which mustbe disclosed, unless those materials are not clearly relevant to a charter challenge or subject to a claim of informer privilege. In doing so,the court specifically rejected the argument that material subject to informer privilege was not captured by the analysis in Stinchcomband ordered disclosure of all the source handler reports and materials which supported the granting of the wiretap authorization. [15] This analysis is followed in R. v.

Whitton 2015 BCSC 859 and cited with approval by the Supreme Court of Canada in WorldBank Group vs. Wallace 2016 SCC 15 , 2016 S.C.C. 15 at para 131. No doubt as a result of these decisions the Crown has,quite properly, agreed to make disclosure in this case of the confidential informant material at issue here. The question that arises now isreally whether or not the accused, or a reviewing court, are bound to accept the Crown's assertion that the redacted material is subject toa valid claim of privilege or is clearly irrelevant.

In my view, this cannot be the case. [16] As was clearly anticipated as far back as Stinchcomb, this is a situation where the court is called upon to create processes toresolve disputes with respect to disclosure. Accepting as I must, that the decision of the Crown to not disclose is a decision which maybe reviewed by the court then clearly that review must be meaningful.

A review by the court limited only to a review of the heavilyredacted material disclosed here is no review at all. [17] At the same time, there is no question that the review processes must both ensure a meaningful review of Crown discretion andat the same time protect confidential informants. The Supreme Court of Canada in R. v.

Basi 2009 SCC 52 , 2009 S.C.C. 52specifically envisioned this dialectic when they wrote, 52 Of course, withheld material over which the informer privilege is claimed might in some instances assist the defense, forexample, by providing a trail to other relevant and helpful evidence, or in preparing and conducting the cross examination of crownwitnesses. The withheld material might even be indicative of innocence, while still falling outside the narrow "innocence at stake"exception to the privilege.

It is therefore essential the claims of privilege be resolved accurately and fairly bearing in mind that ex parteproceedings raise serious procedural fairness concerns of particular significance in the conduct of criminal prosecutions, where theliberty of the accused is at stake.

53 Where a hearing is required to resolve the Crown’s claim of privilege, the accused and defense should therefore be excludedfrom the proceedings only when the identity of the confidential informant cannot be otherwise protected. And, even then, only to thenecessary extent.

In determining whether the claim of privilege has been made out, trial judges should make every effort to avoidunnecessary complexity or delay, without compromising the ability of the accused to make full answer and defense. 54 Throughout, it should be remembered as well that the interest of the accused persons in being present [or, at least, represented] inany proceeding relating to the charges they face remains a fundamental one, even where

section 650, by its very terms, has noapplication. And ex parte procedure is particularly troubling when the person excluded from the preceding faces criminal convictionand its consequences. 55 In order to protect these interests of the accused, trial judges should adopt all reasonable measures to permit defense counsel tomake meaningful submissions regarding what occurs in their absence. Trial judges have broad discretion to craft appropriate proceduresin this regard.

Basi @ 52 [18] In the case at bar, the accused asks the court to conduct a review of the decisions made by Crown counsel not to disclosecertain material. That material encompasses some 45 or 50 pages. This is not a situation where the material in question is substantial. Iagree with counsel, for the accused, when they say that the review of the material in camera would have taken less time than theargument opposing the review. [19] Counsel for the Crown argues strenuously that the accused must meet a burden of proving that there is a reasonable likelihoodthat the Crown has made an error in its editing processes.

I do not read the Supreme Court of Canada's analysis in Stinchcomb as placingany such burden on the accused.

There are certainly instances where the court has called upon the accused to show that the reviewwould be a meaningful inquiry but the imposition of such a burden is an affront to the accused’s ability to make full answer and defensewhere, such as in the case at bar, the disclosure sought is so completely redacted that the defence would be forever precluded fromasking the court conducting its mandated review. [20] It is easy to envision situations where the court will be called upon to craft more creative processes to review non-disclosedmaterial.

This would particularly be so where the material issue constitute volumes and volumes of material. That is not this case. [21] The crown argues further that matters of judicial economy should govern this court's decision. While there is no doubt that thecourt must always be mindful of wasting valuable court resources, it is difficult to maintain that conducting a review of disclosuredecisions, mandated by the Supreme Court of Canada, is a waste of judicial resources. [22] The state has exercised significant power over Mr. Hjerpe.

They have accumulated a body of evidence and used that body ofevidence to affect his arrest and deprive him of his liberty, and invade his privacy through the conduct of a search of his person andeffects subsequent to that arrest. That same state based on legitimate legal principals now refuses to disclose the foundation for thatarrest.

Right thinking citizens would be shocked to believe that the same state that is depriving its citizens of their liberty, and refuses toreveal the facts on which those decisions are made, would be entitled to limit the right of review by then arguing that the review wouldbe too expensive. [23] I agree entirely with the decision of Mr. Justice Punnett in Edwardsen when he writes; The concerns addressed in both Pires and Garofoli related to “the increasing length of court proceedings” and the need to avoid “theinefficient use of court time” (Pires at para. 34).

Such concerns or issues do not arise in the context of disclosure as the volume andnature of disclosure does not impact on the expenditure of judicial resources, particularly since only relevant material can be adduced bythe defence in any event. Further, the scope of a challenge to an authorization remains subject to the limitations articulated in Garofoli. Ido not accept that the potential prolongation of proceedings attributable to relevant evidence being disclosed to the defence should beconstrued as a factor weighing against disclosure.

Efficiency cannot trump the right of the defence to full disclosure, nor justify shiftingthe burden onto the accused at the disclosure stage. Edwardsen 2015 BCSC 705 @ para 55 (Emphasis added) [24] Finally, the Crown argues that the application by the accused here is simply a fishing expedition and the imposition of a burdenon the Accused to show a reasonable likelihood that the judicial review of the non-disclosed will assist in determining the issue beforethe court would make it less so. It takes support for this position from the language in R. v. Pires; R. v.

Lising 2005 SCC 66 ,2005 S.C.C. 66 where the court writes, The concern over the constructive use of judicial resources is as equally, if not more, applicable today as it was 15 years agowhen Garofoli was decided. For our justice system to operate, trial judges must have some ability to control the course of proceedingsbefore them. One such mechanism is the power to decline to embark upon an evidentiary hearing at the request of one of the partieswhen that party is unable to show a reasonable likelihood that the hearing can assist in determining the issues before the court. Id. at para. 35 [25] R. v. Pires; R. v.

Lising the issue was whether the accused was entitled, as a matter of right, to conduct a wide ranging crossexamination of the affiant to the information to obtain a wiretap authorization. In the case at bar, it is agreed that the material sought is

relevant and, following the rulings in Edwardsen (See above at paragraph 14) and McKay 2015 BCSC 1510, must be disclosed. To wishto know what is in those materials in order to properly make full answer and defence, can hardly be understood as a fishing expedition. Rather, it is a legitimate inquiry into information and material which the Crown concedes is highly relevant in that it helps to establishthe very foundation for the arrest and search of the accused. [26] It is difficult to conceive how any request for disclosure of foundational material from the Crown could be conceived as afishing expedition.

If this were the case, a simple request for the police report to the Crown would certainly also be a fishingexpedition. In some instances, the defence requests information that is too remote from the actual investigation to be ordered disclosed,for example, the notes or reports of sub affiants on whom the affiant relied in such instances it may well be that those requests areinappropriate because they lose sight of the focus of the Garofoli inquiry as to the reasonableness of the affiants belief prior to the issuance of the authorization. That most certainly is not this case.

In the case at bar, the request for review is focussed and limited to thematerial actually relied upon by the officers conducting the investigation. Conclusion [27] The application for this court to conduct a review of the unredacted material is granted. As the material clearly includesmaterial which might disclose the identity of a confidential informant, that hearing will be conducted in camera without the presence ofthe accused or his counsel.

Following that review, the Crown may make submissions as to the propriety or possibility of providing thedefence with judicial summaries of the redacted material as envisioned by the court in R. v. Garofoli (1990) (SCC), 2S.C.R. 1421 Para. 79(2).

If judicial summaries cannot be crafted so as to protect the identity of the accused, the court will hear furthersubmission on process thereafter. [28] It is reasonable to envision that following the review of the redacted material, the court will not be able to summarize theredacted material and will provide a decision with respect to whether or not the claim of privilege is properly made out. That may endthe matter though counsel for Mr. Hjerpe will be at liberty to make further submissions at that point. THE HONOURABLE JUDGE MCKIMM