R. v. Little, 2012 NSSC 402

IN THE SUPREME COURT OF NOVA SCOTIA Citation: R. v. Little, 2012 NSSC 402 Date: 2012/11/19 Docket: Hfx No. 393603 Registry: Halifax Between: Her Majesty the Queen Plaintiff v. Codey Little Defendant DECISION Judge: The Honourable Justice N. Scaravelli. Heard: November 5th, 2012, in Halifax, Nova Scotia Final Written Submissions: October 18, 2012 - Defence November 1, 2012 - Crown Written Decision: November 19, 2012 Counsel: Jonathan Langlois-Sadubin, for the Crown Alex Embree, for the Defence

[1] Codey Little is charged with two counts of possession of controlled substances (cocaine and marijuana) for the purposes oftrafficking pursuant to section 5(2) of the C.D.S.A. The charges resulted from the execution of a search warrant at his place ofresidence. The authorization for the search warrant was based on information provided by two informants. The Defence has filed aStinchcombe application seeking further disclosure from the Crown. Specifically, the Defence requests the Crown produce vetted source or information handler notes dated September 26th, October 12th, October 15th and October 18th, 2011.

In addition, the Defence seeks disclosure of a source debriefing report dated October 18th, 2011. The Defence requests these notes for the purpose of determiningwhether to challenge the search warrant. [2] The Crown claims these documents are irrelevant and subject to informer privilege. BACKGROUND INFORMATION [3] The Crown initially refused Defence request to provide source debriefing reports and source handler notes in relation to this matteron the basis of relevance and informer privilege. Following correspondence between the parties, the Crown ultimately disclosed foursource debriefing reports.

The Crown subsequently refused to disclose a fifth source debriefing report and maintained its refusal todisclose any source handler notes. At the time of this hearing the accused had yet to elect his mode of trial. CROWN EVIDENCE [4] The Crown called one witness on this motion. Sergeant Mark MacDonald is in charge of coordinating the Halifax Regional PoliceInformant Program. He was not the police officer who swore the information to obtain the search warrant. Sergeant MacDonald hasacted as a source handler in the past. Source handlers are police officers who deal personally with informants.

The handler keeps “raw”hand written notes containing detailed information provided by the source. These source handler notes contain slang and quotes used byinformants as well as other personal information. Source debriefing reports are typed reports containing relevant information gleanedfrom the source handler notes. Slang and quotes as well as other information that may identify the informant are altered or omitted inthe source debriefing report.

The source handler notes are kept secure and not viewed within the police department. [5] Sergeant MacDonald testified the difficulty in vetting source handler notes for disclosure purposes is in the preventing the releaseof clues contained in the notes that may identify the informant. Moreover, that disclosure may result the blackening out of largesections of the notes. Sergeant MacDonald testified that all requests for source notes go through him. His “policy” is not to disclosesource documents absent a court order.

He would, however, consider disclosure where it may be required to further the Crown’sprosecution of a case. DISCLOSURE [6] The Crown has a duty to disclose all relevant information to the Defence that is not subject to privilege. This principle is based onan accused’s right to make full answer and defence. Where the Crown in its discretion refuses to disclose existing information, it bearsthe burden upon review, of proving the information is irrelevant or privileged. R. v. Stinchcombe (SCC), [1991] S.C.J.No. 83.

PRIVILEGE [7] It is well settled at common law that any information which is likely to identify an informer is protected by privilege. The Policeand Crown as gate keepers of the information have an obligation to protect informer privilege. Failure to protect this privilege risksdiscouragement of the reporting of crime which would have an obvious adverse impact on police investigations and the public interest. Informer privilege is subject only to the “innocence at stake” exception where disclosure is required to prove the innocence of theaccused. R. v. Leipert (SCC), [1997] S.C.J. No. 14.

The defence is not seeking to apply this exception.

POSITION OF THE PARTIES [8] The authorization for a search warrant was based upon material provided in the information to obtain the warrant (I.T.O.). As theinformation contained in the I.T.O came from the source notes, the Defence submits disclosure of all source notes is relevant toamplification of the information in the I.T.O.

The amplification of the summarized information from source notes may assist theDefence in determining whether any nondisclosure, misleading evidence, misinterpretation or other factors justify an application tochallenge the authorization of the search warrant. [9] In terms of privilege the Defence submits it does not seek information from the source notes that would compromise theidentity of the informant.

An order for disclosure of the source documents, specifically source handlers notes, can be subject to vettingso as to not disclose information that might identify the informant. [10] Defence counsel has referred the Court to the case of R. v. Gallant, [2010] Carswell, N.B. 324, a decision of the NewBrunswick Court of Queen’s Bench. In that case the accused was charged with conspiracy to traffic in cocaine based on informationobtained from police wiretap.

As in the present case, the authorization was based on information provided by police informants,recorded first in source handler notes then vetted to protect informant identity and transcribed to source debriefing notes. The accusedrequested the source handlers’ notes in order to determine whether to challenge the wiretap. The Crown provided all source debriefingnotes but refused to disclose source handler notes. The Court held the Crown failed to justify a refusal of disclosure. The informationin the handler notes was likely to be relevant.

Regarding privilege, the Court ordered disclosure of the information except to the extentany information would identify or might lead to identification of the informant. [11] The Crown asserts it has a policy of non-disclosure of the requested documents. The Crown submits the source handlerdocuments are background material and are not relevant. Authorization for the search warrant was based upon the primary materialcontained in the I.T.O. The right to disclosure in this context is disclosure of the material which has been before the authorizing Judge.

Even though the Crown disclosed several source debriefing reports in this case, it submits these documents and the source handler notesare nonetheless irrelevant. [12] The Crown “disagrees” with the Gallant decision and refers the court to the case of R. v. Barzal (B.C.C.A.) (BCCA), [1993] B.C.J. No.1812. In that case information provided by informers was used to obtain wiretap authorizations. At trial,Defence counsel sought to challenge the validly of the authorizations and requested disclosure of all police investigation files whichincluded unedited informer source notes.

Defence counsel asserted the source notes were necessary to test the reliability of theinformers. The trial Judge determined the accused could not make full answer and defence unless they had access to the files containinginformer source notes. The Appeal Court overturned the trial Judge’s decision on the ground that the trial Judge did not follow therecommended procedures in R. v. Garofoli (1990) (SCC), 2 S.C.R. 1421 which are designed to protect the identify ofpolice informers. The effect of the order to disclose would have been to reveal the identity of the informers.

DECISION [13] Unlike Barzal the Defence is not challenging the authorization of the search warrant at this stage. Nor is this a case where theDefence is on a fishing expedition. Review of the I.T.O. reveals the police relied in large part on the information provided by two paidinformants.

I find it is reasonably likely that information in the undisclosed source handler notes and source debriefing reports may beuseful in the defence of the charges which include the possibility of challenging the search warrant. [14] The Defence is entitled to discover relevant information to the extent it does not compromise informer identity. The Crown relieson a blanket policy of nondisclosure of the requested source documents. In my view this is not a proper exercise of Crown discretion.

Itis incumbent upon the Crown to review the requested information and upon court review of any decision not to disclose, provide afactual foundation for claiming irrelevance or privilege. The Crown was unable to explain why it disclosed only a portion of the sourcedebriefing notes. [15] I find the Crown has not established the requested source documents are irrelevant and privileged. As a result the motion isgranted.

The Crown is directed to review the requested disclosure notes and disclose to the Defence all information with the exceptionof any information that would identify or would likely identify the informants. The Crown may retype the information contained in thesource handler’s notes and indicate “blanked out” where appropriate. In the event of dispute regarding full disclosure a motion for areview may be made.