Ontario Court of Justice
Date: 2021 05 13 Court File No.: Brampton 3111 998 19 39570
Between:
HER MAJESTY THE QUEEN
— AND —
TROY MOULTON
Before: Justice G.P. Renwick
Order Made on: 13 May 2021
Counsel: J. Campitelli (P.P.S.C.) and T. Powell (A.G.O.)................ counsel for the Prosecution R. Rusonik.......................................................... counsel for the Defendant Troy Moulton
Endorsement and Order Respecting an Upcoming Basi Hearing
1In my decision released on 28 February 2021, I advised that a hearing would be held to determine the legitimacy of a claim of confidential informant (“CI”) privilege during a continuing Garofoli [2] application in this matter.
2The Supreme Court of Canada has held that a defendant is not entitled to appear or be represented by counsel at such a hearing. [3]
3A date for the Basi hearing has already been arranged with the Trial Coordinator and the prosecutors. It will take place approximately six weeks from now.
4I have had no discussions with either party since the matter was last before me on 11 March 2021. [4]
5In light of the Defendant’s written submissions filed as an exhibit on 10 March 2021, which I have recently re-considered, I have determined that it is appropriate that Peel Regional Police Officer Paul Noonan [5] (badge #2248) testify on the upcoming in camera hearing for the following reasons:
i. Officer Noonan is one of two co-handlers of the putative CI; ii. The Defendant alleges that Officer Noonan has mischaracterized the actual role of the CI in this and other investigations; iii. The Defendant alleges that Officer Noonan has used the purported CI as an agent of the police; iv. I have heard viva voce evidence from the Defendant and received transcripts of other proceedings which lend an air of reality to the suggestion of possible police impropriety; [6] v. To date, I have not been made aware of the name of the putative CI and cannot determine whether the person suspected to have acted as a police agent is the same person upon whom reliance was placed as a CI; vi. It is possible, if the allegation of police impropriety is true, that the other co-handler of the putative CI (Brian Lorette), who is anticipated to testify on the Basi hearing, would have no knowledge of the true use to which the person had been put; vii. It is likely without hearing from Officer Noonan that I will be unable to come to a conclusion on a balance of probabilities whether the privilege claimed applies; viii. There is a considerable amount of time between now and the in camera hearing; and ix. Although I have been made aware that Officer Noonan is apparently away from work due to illness, I have been given no details of the illness, no timeline for recovery, no anticipated date of return to active duty, nor any reason why he could not appear remotely before the Court. [7]
Order
IT IS HEREBY ORDERED THAT:
In the particular circumstances of this case, having regard to the prolixity of these proceedings, the potential to be unable to determine the status of the claimed informant after the in camera hearing without making this Order, and the limited potential for prejudice if the Order is made, I am exercising my discretion in an extraordinary way to require Officer Paul Noonan to appear and testify remotely before me during the upcoming in camera hearing in this matter; AND
The prosecutors are directed to procure the virtual attendance of Officer Paul Noonan for the in camera hearing; AND
The Defendant must provide to the Court any written submissions upon which he relies (not to exceed 10 typewritten, double-spaced pages), and/or questions to be asked during the in camera hearing, with notice to the prosecutors, by 20 May 2021.
Ordered at the City of Brampton On the 13th day of May 2021
Justice G. Paul Renwick Ontario Court of Justice
Footnotes
1See R. v. Basi, 2009 SCC 52, [2009] S.C.J. No. 52 for in camera applications to confirm claims of confidential informant privilege.
2R. v. Garofoli, [1990] S.C.J. No. 115.
3Basi, supra, at paras. 34-58.
4To be accurate, the Defendant has sought to make written submissions to the court without notice to the prosecutors. I have declined to accept those submissions and instructed that they are to be made a sealed exhibit on the Garofoli hearing. Re-iterating part of my decision on 28 February, I have also invited the Defendant, in advance of the Basi hearing, to make written submissions to the court with proper notice to the other side.
5I have learned the first name, but not the rank of this officer, from looking at unredacted portions of a document made exhibit 1 on an earlier occasion: “Contact/Debriefing Report.”
6To be clear, I have come to no conclusions in this regard.
7Personal matters relating to the officer’s illness can be discussed on the sealed record, if need be. All reasonable and appropriate accommodations will be considered to permit Officer Noonan to testify safely and comfortably.