Her Majesty the Queen ) V. Cornick, ) for the Crown - v. –, 2019 MBPC 14

Cite: 2019 MBPC 14 THE PROVINCIAL COURT OF MANITOBA BETWEEN: Her Majesty the Queen ) V. Cornick, ) for the Crown - and – ) ) Leona Claeys, ) M. Schwartz, Accused ) for the Accused (Claeys) and ) Jamie Melnyk, ) ) M. Gould and M. Wire, Accused ) for the Accused (Melynk) ) ) ) ) ) Reasons for Decision delivered On the 22 nd day of February, 2019 A.D., at the City of Winnipeg, in the Province of Manitoba Tracey Lord, P.J.

Ruling on Motion for Disclosure of Affiant’s notes regarding prior dealings with Confidential Informant Introduction [ 1 ] Jamie Melnyk and Leona Claeys are charged with possession of cocaine for the purpose of trafficking pursuant to s. 5(2) of the Controlled Drugs and Substances Act (“the CDSA”) and possession of proceeds of crime pursuant to s. 354(1) (

a) of the Criminal Code (“the Code ”). [ 2 ] The charges arise out of the execution of a search warrant on February 17, 2017 at 560 Cote Street in Winnipeg. [ 3 ] The applicants pleaded not guilty to the charges and elected for trial in Provincial Court. [ 4 ] The applicants are challenging the facial and sub facial validity of the search warrant. Their position is that the grounds for granting the search warrant did not exist, and therefore the search of 560 Cote Street was unreasonable and a violation of s. 8 of the Canadian Charter of Rights and Freedoms (“the Charter ”).

They seek to have the items seized excluded from evidence in their trial pursuant to s. 24(2) of the Charter . [ 5 ] The Information to Obtain the search warrant (“ITO”) was prepared by Constable D. Flock of the Winnipeg Police Service (“WPS”) and was based in part on information provided to him by a confidential informant (“CI”). Constable Flock is also the CI’s handler. [ 6 ] The Crown provided an edited version of the ITO as well as disclosure of Constable Flock’s notes, also edited, relating to his dealings with the informant in this investigation.

[7] The applicants have applied for leave to cross-examine the affiant Constable Flock, and also seek further disclosure of hisprior dealings with the confidential informant. [8] In the Information to Obtain, Constable Flock made statements about the reliability of the informant.

The statements in theITO are as follows, and appear in this order: • That “source “X” has provided information to me in the past and has led to arrests for Drug charges and Criminal Code charges.” • That “ “X” has never been charged with perjury or public mischief”. • That “the information “X” has provided regarding this investigation has been proven reliable”. • And that “None of “X”’s information has been false or misleading.” Position of the Applicants [9] The applicants suggest that the statement that “None of “X”’s information has been false or misleading” should be interpretedas meaning that all information given by the informant across all cases has been true, and that this supports the foundation for theirdisclosure request. [10] The applicants contend the further disclosure being sought will assist in providing the foundation for their application for leaveto cross-examine Constable Flock, in that the disclosure is necessary in order to effectively challenge Constable Flock’s contention in theITO that the informant is reliable. [11] Ultimately the defence will argue the required statutory preconditions for the warrant to issue did not exist because informationprovided by a confidential informant must be compelling, credible and corroborated in order for it to sustain reasonable and probablegrounds. (R. v.

Debot, [1989] 2 S.C.R.) [12] Counsel for the applicants acknowledge that confidential informants have a special status protected by informant privilege, butargue that any safety concerns surrounding the possible identification of the informant can be dealt with by the requested notes beingedited. [13] Ultimately they argue the disclosure is required in order to make full answer and defence.

Position of the Crown [14] The Crown is opposed to the request for further disclosure and argues that the onus is on the applicants to show the informationsought is likely relevant to these proceedings. [15] The Crown argues the notes in questions are not “fruits of the investigation” or part of the “investigative file” as contemplatedby R. v.

Stinchcombe, (SCC), [1991] 3 S.C.R 326. [16] Further, the Crown says the notes in question were not relied upon by the affiant in the ITO and were not before the Judge thatissued the search warrant. [17] It is the Crown’s position that the affiant’s statement that “None of “X”’s information has been false or misleading” refers onlyto the information given about this investigation and not others. [18] The Crown contends that the applicants have not satisfied the test of likely relevance, have not established that the informationrequested would assist in making full answer and defence, and that in essence the request is nothing more than a fishing expedition. [19] The Crown also points to the dangers associated with editing information that is protected by informant privilege and arguesthat the combined effect or mosaic created by disclosing multiple pieces of information from the informant, even if carefully edited,makes the potential identification of the informant possible. [20] Finally the Crown questions the probative value of the additional disclosure and queries in what way and by what standard thereliability of the information provided by the informant in the past can be evaluated. [21] The Crown contends that inevitably the disclosure of the notes would lead to further requests for disclosure as to whether theinformation was ultimately used, in what way and with what outcome, none of which would reflect on whether the information wasactually reliable or not.

This would be contrary to the narrow scope of a Garofoli hearing, which is aimed at avoiding multiple pretrialproceedings. General Principles and Context of the Application [22] The applicants rely on the case of Stinchcombe for general principles regarding disclosure. [23] Stinchcombe sets out the Crown’s general duty to disclose all relevant material in order for an accused to make full answer anddefence. The duty is not absolute and the Crown retains discretion as to the timing of disclosure and the withholding of certaininformation. [24] One such example arises in the case of informant privilege.

In such a case the Crown has a duty to protect the identity of theinformer. The Crown’s discretion is reviewable by the trial judge, who may in certain circumstances order disclosure be made in spite ofan existing privilege.

[25] In R. v. McNeil, 2009 SCC 3 , [2009] 1 S.C.R. 66 the Supreme Court held that Stinchcombe requires the Crown tomake disclosure of “the fruits of the investigation” or the “investigative file”.

The Court clarified however that not all information withinthe possession or control of the police is part of the investigative file and police files should not be treated as presumptively relevant andproducible. [26] The applicants’ motion for additional disclosure is brought in the context of a Garofoli application, which has a narrow focus. [27] While it is clear that the right to disclosure applies in a Garofoli application, the content of the right and the circumstances thattrigger the right are not the same as at trial. [28] Unlike a disclosure application brought in the context of the trial proper, the focus of a challenge to the validity of a warrant andthe principles that apply, provide a different context and framework for the applicants’ request for disclosure. [29] The Garofoli review hearing is not intended to test the merits of the Crown’s case or the truth of the allegations contained in theInformation to Obtain.

The review is a pretrial threshold evidentiary hearing to determine the admissibility of relevant evidence aboutthe offences, in this case drugs and money, seized pursuant to a presumptively valid court order. [30] In such an application, The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before theauthorizing judge as amplified on review, the reviewing judge concludes that the authorizing judge could have granted the authorization,then he or she should not interfere.

In this process, the existence of fraud, non disclosure, misleading evidence and new evidence is allrelevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to be any basis for thedecision of the authorizing judge. (R.v.Garofoli, (SCC), [1990] 2 S.C.R. 1421 para. 56) [31] What matters on a sub facial challenge is what the affiant knew, or ought to have known in applying for the warrant and theaffiant’s reasonable belief when the affidavit was sworn. [32] This narrow and specific focus is highlighted by the Supreme Court’s comment in the R. v. Pires; R.v.

Lising, 2005 SCC 66, [2005] 3 S.C.R., 343 at para. 41: . . . upon further investigation, the grounds relied upon in support of the authorization may prove to be false. That does not retroactivelyinvalidate what was otherwise a valid authorization. Applicable Case Law [33] This specific issue has not been considered in Manitoba. There are however cases from other provinces both at the trial leveland the appellate level that have addressed it. [34] The applicants rely heavily on the Ontario Court of Appeal decision in R. v.

Bennett 2017 ONCA 780, in which disclosurerelated to prior dealings with a confidential informant was ordered. Further reference to the particular arguments at trial in Bennett areimportant. [35] In Bennett, the information provided by the informant indicated that drugs would be found in Mr.

Bennett’s apartment. [36] The affiant, who was also the informant’s handler made detailed statements in the ITO about the reliability of the informant.The affiant referred to the informant as a “proven and reliable informant” who had “never provided false or faulty information”, andfurther that the informant had provided information on “several occasions resulting in numerous search warrants being executed andseizure of quantities of crack cocaine.” [37] The warrant was executed at Bennett’s residence and while no drugs were located, a loaded firearm was. [38] The ITO was disclosed to the defence but was heavily redacted to protect the identity of the informant.

The Crown concededthat the edited ITO did not make out the reasonable and probable grounds required to support the issuance of the warrant, and as a resultthe Crown in Bennett was required to invoke step six of Garofoli. [39] As in this case, the defence in Bennett argued that disclosure of the notes of the handler as well as the CI’s file, which includedinformation about the CI’s performance in prior cases was necessary to assess the truthfulness of the affiant’s assertions about theinformant’s past performance. [40] As in this case, the defence conceded that there was nothing to suggest that the informant was incredible or unreliable, but citedthe need for “quality control” to weed out “bad apples”, presumably referring to the affiant. [41] In Bennett the defence offered to abandon their disclosure request if the Crown agreed that the Court not consider any portionsof the affidavit dealing with the CI’s past performance and reliability. [42] The trial judge ordered the production of the requested material in redacted form.

After the order was made the Crownindicated they would excise the reference to the CI’s past reliability from the ITO, and proceed on that basis. [43] Despite this concession, the defence withdrew the previous offer to abandon the disclosure request and instead maintained thedisclosure was still necessary.

They argued that the content of the ITO was exaggerated or fabricated and questioned whether theconfidential informant actually existed or in the alternative that the past performance referred to didn’t exist. [44] To address the defence concern that the informant was a phantom, the trial judge changed the order to include only three pagesof the handler’s notes fully redacted except for one particular date, as well as reference in the notes to the accused’s address.

[45] Ultimately the trial judge ruled that the ITO was not facially valid because after the Crown excised the reference about theinformant’s past reliability there was no basis to conclude that the informant was credible and reliable. The Court also found thecorroboration that existed was insufficient. The judge found a breach of s. 8 but allowed the evidence in at trial under 24(2). [46] Mr.

Bennett was convicted, and appealed. [47] The Ontario Court of Appeal considered whether the trial judge erred in denying the complete disclosure request by rescindingthe original order, which also included the content of the CI’s file of past performance.

It was also argued on appeal that the denial ofdisclosure undermined the appellant’s request to cross examine the affiant, which was also denied at trial. [48] At paragraph 34, the Court concluded that the handler’s notes were relevant to the adequacy of the grounds for the affiant’sbelief that the informant was reliable. [49] Further, the Court concluded at paragraphs 36 and 37 that the affiant’s belief in the informant’s credibility came from hispersonal experience with the informant on prior cases and this made the track record and prior relationship relevant to the reliability ofthe informant in the current case and therefore should have been disclosed. [50] The Court ultimately however did not give effect to this ground of appeal.

The Crown’s concession and excision of the portionsof the ITO that referenced the track record of the informant resulted in the trial judge finding a breach of s. 8 of the Charter, which theCourt of Appeal found was the most that the appellant could have expected from receiving the requested disclosure in any event. [51] The Ontario Court of Appeal in considering this issue did not reference the British Columbia Court of Appeal case of R. v.McKay, [2016] B.C.J.

No 2042 which was decided five months earlier on this very issue or any of the decisions from trial courts inOntario in which similar disclosure requests were denied. [52] The Crown relies on the British Columbia Court of Appeal decision of McKay. [53] Mr. McKay was charged with possession of cocaine for the purpose of trafficking. He challenged the sufficiency of the groundsfor the search warrant executed at his residence.

He sought to cross-examine the affiant of the ITO and also applied for disclosure ofdocuments containing intelligence from two confidential informants referenced in the ITO. [54] The disclosure sought included the notes of the informants’ handlers as well as debriefing reports submitted by the handlersabout information provided. The vast majority of the items sought were not reviewed by the affiant or referenced in the ITO. [55] At trial the Crown was ordered to produce the disclosure.

They declined to do so to protect the identities of the informers, andthe charge was stayed. [56] The Appeal Court in McKay did a thorough review of cases on this point from trial courts across the country as well as a reviewof the Supreme Court of Canada cases that create the framework for such applications. The Court relied heavily on the case of WorldBank Group v.

Wallace, 2016 SCC 15 , [2016] 1 S.C.R 207. [57] In McKay the Court concluded that informant related materials not relied on by the affiant in an Information to Obtain, and notbefore the issuing judge are prima facie irrelevant and are producible only where the defence establishes they are likely relevant to anissue on the application. [58] The Court also noted that even where threshold relevance has been established production of source handler notes and sourcedebrief reports may not be consistent with informer privilege. [59] At paragraph 82 the Court said: . . . if the disclosure request goes beyond what was before the authorizing judge or part of the investigative file disclosed pursuant to theCrown’s Stinchcombe obligations, the accused must show some basis for believing that there is a reasonable possibility such materialwould be useful on the Garofoli application. [60] Further at paragraphs 125 and 126 citing World Bank the Court in McKay emphasized that having the information before theauthorizing judge and the investigative file pursuant to Stinchcombe should be sufficient to enable the accused to show a basis for (in theWorld Bank case) third party production requests, if such a basis exists.

While an accused has a right to production of relevantdocuments, there is no right to embark on a fishing expedition. [61] Moreover, in the context of an application to cross-examine an affiant in a Garofoli application . . . cross examination generally must show not only that some of the information relied upon by the affiant is false but also that theaffiant knew or ought to have known that it was false. This narrow test governs an application for disclosure of evidence in support of anapplication to review an authorization by way of cross examination.

Analysis/Conclusion [62] The Bennett case is arguably distinguishable from the present case based on the nature of the information put before the issuingjudge and the specific statements made by the affiant about the informant’s reliability and credibility in past cases. [63] In Bennett the informant was referred to as being a “proven and reliable informant who had never provided false or faultyinformation”. [64] In my view, in this case, given the order in which the statements about the informant’s credibility and reliability occur in theITO, the phrase “None of “X”’s information has been false or misleading” is in reference to the information provided about this

particular case. [ 65 ] However, even on a broader

interpretation of the statements about the informant’s credibility and reliability that were before the issuing judge, in my view the approach taken by the Court in McKay best reflects the principles and framework set out by the Supreme Court of Canada in Garofoli and World Bank . [ 66 ] I have concluded that the applicants have not met the test of likely relevance. There is nothing before the Court to suggest that having this disclosure will be useful in the application to cross-examine the affiant.

The assertion that the handler’s notes will assist in the cross-examination of the affiant by uncovering yet unknown inaccuracies or omissions in the ITO is not a sufficient basis to establish likely relevance. [ 67 ] I am also not satisfied that there would be any significant probative value in the content of the notes. [ 68 ] I am not satisfied there is an effective way to test the credibility and reliability of the past information provided. Information provided by an informant may or may not lead to an investigation, arrest, charge, prosecution or conviction.

That does mean it was not credible or reliable at the time it was given. [ 69 ] These reasons are in addition to the obvious concerns about the efficacy of editing notes from multiple interactions with an informant in a manner that still protects informant privilege. [ 70 ] The motion for disclosure of notes of the affiant’s previous dealings with the confidential informant is denied. “Original signed by” _________________________ Tracey Lord, P.J.