Regina v. Roy Date:, 2014 BCPC 70

Citation: Regina v. Roy Date: 20140416 2014 BCPC 0070 File No: 90285-1 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. PETER GORDON ROY REASONS ON VOIR DIRE OF THE HONOURABLE JUDGE CRAIG Counsel for the Crown: Cameron Fast Counsel for the Accused: Jay Solomon Place of Hearing: Port Coquitlam , B.C.

Date of Hearing: February 21 and March 7, 2014 Date of Judgment: April 16, 2014 Introduction [ 1 ] This is an application by the accused for judicial review of the Crown’s refusal to disclose material referred to in an Information to Obtain (“ITO”), a Search Warrant that was executed on the accused’s residence. The material sought is: (

a) A report of Cst. Jones from June 2012 regarding information provided by a confidential informant; and (

b) Redacted information and Exhibit “A” attached to the ITO regarding the confidential informant. [ 2 ] The Crown has refused disclosure on the basis that the report of Cst. Jones is not relevant and, in any event, covered by informer privilege.

With respect to the redacted material and Exhibit “A”, the Crown argues that an application for disclosure of this material is premature and ought to be heard in the course of a Garofoli hearing and only once the accused has been granted leave by the Court to enter a voir dire . [ 3 ] The Defence does not seek disclosure of material that is covered by informer privilege, but asks the Court to examine the material and make the final determination as to necessary editing after hearing submissions and taking the relevant factors into consideration. Background [ 4 ] Mr. Roy is charged as follows: (

a) Count 1: possession of chemicals, glassware, and equipment knowing it would be used to produce methamphetamine, contrary to s. 7.1(1) of the Controlled Drugs and Substances Act (“CDSA”) ; and (

b) Count 2: possession of hypophosphorous acid, for the purpose of producing methamphetamine, contrary to s. 6.1 of the Precursor Control Regulations and s. 46 of the CDSA ; [ 5 ] These charges arose after Mr. Roy’s residence was searched on June 28, 2012 pursuant to a search warrant. In the course of the Information to Obtain this warrant, the affiant refers to information received from a confidential informant that alleged that “Peter Roy cooks methamphetamine”. The ITO states the following regarding the confidential informant: 31.

I have included information from one confidential informant in this Information to Obtain. I have written the information give by the confidential informant in a manner that I believe will protect their identity from being disclosed. In some cases I have paraphrased or summarized the information given or omitted details which would likely identify the informant. Some of the information on which I rely for the purposed of this application cannot be disclosed without identifying the informant who gave it.

I have included that information in a separate document which is not produced and shown to me and marked as Exhibit “A” to this sworn document. I believe that all of its contents are true. If the warrant is granted at any time, this sworn document is required to be disclosed to a person charged with an offence or any other interested person, I believe that Exhibit “A” must be removed and not disclosed in order to protect the identity of the confidential informant. SOURCE “A” PEDIGREE: 32. I read the police report of Constable Jones of the Vancouver Police Department (“Cst.

Jones”), dated June [edit], 2012 that said he had received information related to this investigation from a confidential police informant (“Source A”). The identity of Source “A” is not known to me, however from the report of Cst. Jones, I learned the following about Source “A”: a. Source “A” had given Cst. Jones information in the past with respect to matters unrelated to this investigation; b. Information previously received by Cst. Jones from Source “A” was not tested or used to obtain a judicial authorization due to other operational priorities of Cst. Jones that were unrelated to this investigation; c.

Source “A” has voluntarily provided the information related to this investigation and has not requested any form of compensation for providing the information; d. In regards to the providing of information relating to this investigation, Source “A” is motivated by a concern for the safety of others; e. [edit]; f. Source “A” did not have a criminal record that included any perjury, or other types of credibility based offences; and g. See Exhibit “A” for further information about Source “A”.

[6] The accused has given notice to the Crown that he intends to make an application to challenge the search warrant in a voir direprior to trial. He seeks disclosure of Cst. Jones’ report and the information relied upon by the authorizing judge that is not covered byinformer privilege to have a full opportunity to attack the validity of the warrant. [7] Although an official Charter notice has yet to be filed, counsel for the accused has indicated in correspondence with the Crownthat he will argue that the ITO “sets out no basis upon which the JJP could have issued the warrant”.

In addition, it will be argued that inthe ITO there were “material misrepresentations and non-disclosures that undermined the allegations made”. This is further outlined asfollows: The basis for this concern is that the affiant Cst. Owens cannot be relied upon to accurately transcribe and describe the reports of otherofficers and that a judicial review of the edited information might disclose evidence that could impact on the reliability of the informant. [8] An illustration of the basis for the concern regarding Cst. Owens’ reliability was filed by the accused at the hearing.

It was thesource document for the contents of paragraph 25 of the ITO, an email from an officer on the Clandestine Lab Investigations team givinghis opinion on chemicals that had been purchased by the accused. The

summary of the contents of this email set out by Cst. Owens inthe ITO was not entirely accurate and portrayed matters in a more suspicious manner to the accused than the original document. [9] Knowing this, counsel for the accused has similar concerns regarding Cst. Owens’

summary of Cst. Jones’ report regardingSource A’s information in paragraph 32 and wishes to compare the original document with the

summary in the ITO for accuracy andreliability. Issues [10] The issues I must determine at this hearing are as follows: (

a) Whether Cst. Jones’ report is relevant and ought to be disclosed, subject to editing for informer privilege; and (

b) Whether a judicial review of this material is appropriate at this stage of the proceedings, or ought to be held in the courseof a Garofoli hearing. [11] Following the oral submissions at this hearing, I advised counsel that I had determined that the report of Cst. Jones was relevantand a judicial review of the material was appropriate at this stage of the proceedings, with written reasons to follow. These are myreasons. Relevance of Cst. Jones’ Report [12] The Crown has argued that Cst.

Jones’ report is simply background material pertaining to an informer and not part of theinvestigative file, nor can it be considered fruits of the investigation subject to first party disclosure. As such, the material is only subjectto disclosure if it is shown to be likely relevant: R. v. McNeil, 2009 SCC 3 , [2009] 1 S.C.R. 66. [13] In the course of argument, the Crown relied upon a number of cases that dealt with the issue of disclosure of backgroundmaterial related to informers. Included were R. v. Ahmed, 2012 ONSC 4893, R. v. Ali, 2013 ONSC 2629, R. v. Daponte, 2013 ONSC4720, R. v.

Barzal (1993), (BC CA), 84 C.C.C. (3d) 289(B.C.C.A.), R. v. Basi 2010 BCSC 26, and R. v. Vanalstine (16August 2011), Vanc. Doc. No 25228 (B.C.S.C.). [14] The difficulty I have with the Crown’s argument, and reliance upon these authorities, is that it depends upon what is in my viewa mischaracterization of Cst. Jones’ report. The report was provided to the Affiant Cst. Owens by Cst. Jones in the course of Cst. Owens’investigation into the accused. Cst. Owens reviewed the report, and relied upon its contents as part of his grounds for belief in the ITOused to obtain the search warrant for the accused’s residence.

The report is specifically referred to in paragraph 32 and its contentsoutlined in detail. [15] As a result, I do not believe Cst. Jones’ report is simply “background material in relation to the informant” that is “outside theinvestigative file”. It is a source document relied upon by the affiant and part of the investigative file, or fruits of the investigation. Assuch, it is subject to first party disclosure requirements. [16] In making this determination, I have relied upon a passage from the text “Wiretapping and Other Electronic Surveillance”,Hubbard, Brauti, and Fenton, 2011.

Although the reference is in relation to disclosure in relation to challenges to wiretap authorizations,the principles would equally apply to challenges to search warrants. In that text, the authors set out the type of disclosure that isroutinely required by the Defence after receiving disclosure of the initial wiretap package: Once the materials are disclosed, it is usual that further requests for disclosure will be made by the defence. These latter requests aremade pursuant to the continuing obligation of the prosecution to provide disclosure as set out in Stinchcombe.

They often have to dowith disclosure of sub-information revealed by the affidavit material from the packet. For example, much of the affidavit supporting theauthorization may be based on information and belief. Even if confidential informants have not been used as sources for the reasonablegrounds to obtain the authorization, it is rare that all the information is first-hand, provided solely by the affiant. Indeed, in moreproblematic cases, the affiant may be a mere “straw man” who has little first-hand information about the investigation.

Accordingly,more detailed disclosure of the sources of information relied upon by the affiant is frequently sought. It is routine, for instance, torequest the following types of information: (

a) The criminal records of people supplying information;

(

b) For confidential sources, details of their track record for supplying reliable information to the police (See R. v. Debot, (SCC), [1989] 2 SCR 1140); (

c) Police notes, will says, incident reports and surveillance reports referenced in the affidavit; (

d) Copies of any photographs, documents or other written material referenced in the affidavit; (

e) Copies of any previous authorizations, search warrants, surveillance and other investigative techniques referenced in the affidavit; (

f) Full details of all previously intercepted private communications referenced in the affidavit; (

g) Incident reports, synopses and records of arrests in relation to any events detailed in the affidavit; (

h) Details in connection with allegations of investigative necessity referenced in the affidavit material; (

i) Information disclosing when the targets or other persons named in the authorization became known to the police; [17] In addition, the material sought in this case is significantly different from the material sought in the cases relied upon by theCrown. In R. v. Ahmed, supra, the accused sought the notes of the officers who were handlers of the informant. In his decision,MacDonnell J. pointed out that the affiant had not referred to or relied upon the handlers notes in her affidavit, nor had she obtained themfrom the officers (para. 8 & 15).

The Court held that this material was outside of the investigative file (para. 30). Before disclosure ofsuch material will be ordered, an accused must show “there is a reasonable possibility that disclosure will be of assistance on theapplication” (para. 31).

The Court concluded: 44 For the foregoing reasons, I conclude that where the defence is seeking a court order obliging the Crown to disclose material that wasnot before the authorizing judge, that the affiant did not rely on, and that is outside of the borders of what is relevant for the trial itself,the defence has to do something more than demand the material. It must breathe life into the claim of relevance. (Emphasis added) [18] Significantly, in R. v.

Ahmed, supra, the Crown had disclosed vetted copies of the source reports in relation to the confidentialinformants since the affiant had obtained them from the police handlers and had summarized them in her affidavit. Contrary to theCrown’s argument, this case is supportive of an order for disclosure of Cst. Jones’ report. [19] The case of R. v. Ali, supra, was, once again, a case in which the defence was seeking disclosure of the handler’s notes of theconfidential informant, as well as the informer’s file. The Court relied upon R. v.

Ahmed, supra, and the fact that no basis had been showto justify disclosure to dismiss the application. There was nothing to suggest the affiant had referred to the notes or informer’s file in theaffidavit for the search warrant. [20] In R. v. Daponte, supra, the Court relied upon the cases of R. v. Ahmed, supra, and R. v. Ali, supra, to dismiss an application fordisclosure of “the complete file on each and every informant used in the investigation”.

Notably, the information provided from thesources which had been summarized in the appendices to the affidavit had been disclosed and was referred to in the course of thereasons. [21] In R. v. Barzal, supra, the accused sought disclosure of informer debriefing notes in relation to informers who had providedinformation used to obtain wiretap authorizations. The debriefing notes were contained within operational files which were said “in allprobability” to “contain information relating to matters unrelated to anyone connected with this particular investigation” (para. 9).

Inaddition, information regarding the informers and the information they had provided had been attached as appendices to the affidavit, butnot disclosed to the accused due to a claim of informer privilege by the Crown. [22] In the application for disclosure before the trial judge, there was a judicial review of the Crown’s disclosure obligations inaccordance with R. v. Stinchcombe (SCC), [1991] 3 S.C.R. 326. The Crown filed a number of exhibits at the voir direand called evidence from one of the investigating officers.

The officer testified that disclosure of the debriefing reports, even if edited bya third party, would violate informer privilege. The Crown opposed disclosure of the debriefing reports, but urged the trial judge toreview the reports to determine if any part of them could be disclosed to the accused. The trial judge declined to review the materialafter he determined from the evidence of the officer that it would be fruitless to attempt to edit the debriefing reports.

Instead, he ordereddisclosure of the material. [23] On appeal, the Court of Appeal found that the trial judge had erred in not reviewing the appendices to the affidavits todetermine whether some or all of the material could be disclosed without revealing the identity of the informant.

The reviewing judgewas required to review the material which had been before the authorizing judge to determine whether any of it should be disclosed toprovide the accused with a full opportunity to attack the validity of the authorizations. (para. 39) [24] With respect to the debriefing notes, there was nothing to suggest the affiant had reviewed the debriefing notes in preparation ofthe affidavit or referenced them in the affidavit. The appeal Court held that the accused were not entitled to disclosure of these notes.

Inparticular, the Court noted that, since there was no allegation of fraud, non-disclosure, or misleading evidence in the affidavit material,the reliability of the informants ought to be determined on the basis of the information before the authorizing judge. 43 On a review of an authorization the trial judge is endeavouring to determine whether in the totality of the circumstances theauthorizing judge could have concluded that the informants were sufficiently reliable to support a finding of reasonable and probable

grounds. Subject to the existence of fraud, non-disclosure, or misleading evidence, none of which were alleged here, the indicia of reliability must be in the material before the authorizing judge. Otherwise the authorization cannot stand. It is reliability in this context which is relevant in respect to the validity of an authorization, not reliability at large. 44 In this case the accused wanted access to the debriefing notes in order to test the reliability of the informers. A detailed inquiry into police files is not required for that purpose.

Sufficient reliability is established, or is not established, by reference to the material filed in support of an application for an authorization. The right to make full answer and defence in this context is a right to the disclosure of material which had been before the authorizing judge. It is not a right to embark on a fishing expedition of all the material in the possession of the police.

Such an enquiry could be endless, including access to police files, cross-examination of informants (which is not permitted: Garofoli at p. 1465), and consideration of the details of each case in which the informer had been involved. [ 25 ] In the case before me, the Defence is alleging that the affiant provided misleading evidence or did not disclose relevant material in the ITO. The Defence has pointed to an example of this with respect to one paragraph of the ITO and wishes to canvass whether it also occurred in paragraph 32 with respect to the information provided by the informant.

The reliability of the affiant, as well as the confidential informer is at issue. I do not consider this context to be comparable to the fishing expedition referred to in the passage from R. v. Barzal , supra, quoted above. [ 26 ] See also, R. v. Vanalstine , supra , where the Court found that disclosure of information in relation to a third party investigation that had been mentioned in an affidavit was not required where there had been “no submission or material filed suggesting that there is material non-disclosure in the affidavit” (para. 33). [ 27 ] In addition, in R. v.

Barzal , supra, a voir dire was declared and a judicial review of the Crown’s disclosure obligations was conducted. The Crown called evidence and filed exhibits to justify its claim of informer privilege. The Crown urged the trial judge during the voir dire to review the debriefing reports to determine if any part of them could be disclosed without violating informer privilege. The Defence in the case before me requests a similar procedure, relying upon the authority from R. v. Barzal , supra . I believe that this case is supportive of the Defence’s application.

Right to Disclosure in Context [ 28 ] The Crown has argued that the decision by the Supreme Court of Canada in R. v. Pires; R. v. Lising , [2005] 3. S.C.R. 343 is authority for the proposition that the accused’s right to full answer and defence is less expansive in the context of a Garofoli hearing than in the course of the trial proper.

By extension, it is argued that the Crown’s disclosure obligation ought to be more limited in scope in this context, since the material sought is to be used to challenge the grounds for a search warrant, as opposed to an issue related to the guilt or innocence of the accused. [ 29 ] I did not take the comments of Charron J. in Lising , supra , as broadly as the Crown has argued. In my view, the Court determined that the scope of cross-examination at a Garofoli hearing is more limited than the scope cross-examination at a trial proper.

The purpose of a Garofoli hearing is to determine the admissibility of evidence. It does not involve a determination of the essential elements of the offence or the guilt or innocence of the accused. Given the fact that there is a narrow basis for exclusion of evidence in a Garofoli hearing, it follows that the scope of permissible cross-examination at such a hearing is more limited.

As a result, the Court concluded the requirement that the accused must obtain leave to cross-examine does not infringe the right to make full answer and defence. [ 30 ] The Court did not, however, suggest that the Crown’s disclosure obligations were more restricted in a Garofoli hearing than at a trial. In fact, one of the justifications for the limitation on the right to cross-examination was because the accused would have already received “comprehensive disclosure of all investigative material”.

The Court noted as follows: 17 … Stinchcombe mandates a level of investigative transparency such that it provides the accused with the relevant evidence on how the authorization was implemented, as well as other details of the investigation. This development can only have enhanced the accused’s ability to meet the Garofoli threshold requirement for cross-examination. [ 31 ] The right to full disclosure thereby ensures that an accused will have the material necessary to challenge the validity of an authorization.

The Court noted that an accused is provided with disclosure of all of the material relating to the granting of an authorization, including the affidavit filed in support, subject to editing for informant privilege. In addition, the accused is entitled to all potentially relevant material in the possession or control of the Crown in order to launch a challenge to an authorization.

The Court held as follows in this context: 26 … under the principles established in Stinchcombe , the defence is entitled to all material in the possession or control of the Crown that is potentially relevant to the case, whether favourable to the accused or not. The defence can therefore compare the contents of the investigative file received from the Crown to the authorization's supporting material to ascertain whether anything throws doubt on the reasonable believability of the latter.

Further, the disclosure material may also provide the defence with possible third-party avenues of inquiry. 27 Hence, the defence does not arrive empty-handed at the evidentiary hearing. More importantly, if no basis can be shown for questioning the validity of the authorization on the strength of the disclosed material, it is generally unlikely that cross-examination of the affiant will provide further material information. I say it is unlikely because of the narrow focus of the inquiry on this evidentiary hearing. (Emphasis added)

[32] In the case before me, the accused wishes to compare Cst. Jones report, which I have found is part of the “contents of theinvestigative file”, with the affidavit to obtain the search warrant “to ascertain whether anything throws doubt on the reasonablebelievability of the latter”. I believe he is entitled to disclosure of that report, subject to editing for informer privilege. “Likely Relevance” [33] Given my findings regarding the nature of the material sought and the case authorities mentioned, I have found that Cst. Jones’report is relevant under the standard of relevance set out in R. v. Stinchcombe.

However, even if I were to adopt the standard of “likelyrelevance” urged by the Crown, I would find the report relevant and subject to disclosure. The report was relied upon by Cst. Owens andincorporated into the affidavit to obtain the search warrant. It was relevant to his grounds for obtaining the warrant, and is relevant to achallenge to those grounds. Procedure for Judicial Review [34] The Crown has opposed the accused’s application for judicial review of Cst. Jones’ report, the redacted information in theInformation to Obtain, and Exhibit “A”, at this stage of the proceedings.

The Crown claims that judicial editing of the material can onlytake place in the context of the accused’s challenge to the search warrant, once the accused has been granted leave to enter a voir dire. [35] The Crown has not provided any authority for this proposition, beyond setting out the procedure as set out in Garofoli.

For thereasons which follow, I believe a judicial review of the Crown’s decision to withhold disclosure of the material sought is appropriate atthis stage of the proceedings. [36] The Court’s ability to review the Crown’s discretion to withhold disclosure was set out clearly in Stinchcombe and has beenreiterated by the courts consistently since that time. See, for example R. v. McNeil, supra, at para. 18. [37] The Supreme Court of Canada elaborated on the procedure in R. v.

Chaplin, (SCC), [1995] 1 S.C.R. 727 asfollows: 25 In situations in which the existence of certain information has been identified, then the Crown must justify non-disclosure bydemonstrating either that the information sought is beyond its control, or that it is clearly irrelevant or privileged. The trial judge mustafford the Crown an opportunity to call evidence to justify such an allegation of non-disclosure. As noted in R. v. Stinchcombe, supra, atp. 341: This may require not only submissions but the inspection of statements and other documents and indeed, in some cases,viva voce evidence.

A voir dire will frequently be the appropriate procedure in which to deal with these matters. [38] As noted previously, in R. v. Barzal, supra, the Court of Appeal held that the trial judge in a judicial review ought to havereviewed the material before the authorizing judge to determine whether any of it should be disclosed to provide the accused with a “fullopportunity to attack the validity of the authorizations” (para. 39). A similar procedure was carried out by Mackenzie J. in R. v. Basi,supra. [39] The procedure was also addressed by the Supreme Court of Canada in another decision in R. v.

Basi, 2009 SCC 52 ,[2009] 3 S.C.R. 389. The accused had applied for disclosure of material which had been edited out of the disclosure they had received. The Crown claimed that the material was covered by informer privilege and the Crown would not be relying upon it to prove guilt attrial. The Crown sought an in camera and ex parte hearing before the judge to prove the privilege. The trial judge held that counsel forthe accused could participate in the hearings, subject to providing certain undertakings.

The Crown appealed the trial judge’s order toallow defence counsel to attend the in camera hearing and the matter made its way to the Supreme Court of Canada. [40] The Court determined that the trial judge had erred in allowing defence counsel to attend the in camera on the issue of informerprivilege. In the course of the reasons of the Court, Fish J. set out the procedure that ought to be followed by a court in determining anissue of informer privilege.

He said as follows: [53] Where a hearing is required to resolve a Crown claim of privilege, the accused and defence counsel 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 defence. [41] In order to safeguard an accused person’s interest in being present at such a hearing, a trial judge should adopt “all reasonablemeasures to permit defence counsel to make meaningful submissions regarding what occurs in their absence” (Basi, at para. 55).

Although there is a broad discretion in this regard, such measures may include inviting submissions on the scope of the privilege and itsapplication in the circumstances of the case, and inviting questions which may be put to the witness(es) by the trial judge at the ex parteproceeding.

In addition, in appropriate cases, the court may provide redacted or summarized versions of the evidence presented at thehearing to the defence to ensure fairness to the accused, so long as informer privilege remains protected. [42] Counsel for the accused in the case at bar is seeking a hearing of this nature and does not expect to be present. As noted earlier,I agree that a hearing is appropriate and ought to be conducted, taking into account the procedure set out in the aforementioned cases. [43] The accused’s application is granted.

The Honourable Judge B. Craig Provincial Court of British Columbia