Her Majesty the Queen v. Cook

[Indexed as: R. v. Cook]

Ontario Reports

Court of Appeal for Ontario,

Doherty, Pepall and Benotto JJ.A.

March 4, 2014

119 O.R. (3d) 168 | 2014 ONCA 170

Case Summary

Criminal law — Disclosure — Privilege — Police receiving unsolicited anonymous e-mail after accused was convicted alleging that two police witnesses had lengthy history of misconduct — Internal Affairs Bureau investigating — Crown disclosing redacted summary of investigation to accused but asserting confidential informer privilege over information disclosing identity of author of e-mail — Crown also erroneously arguing that accused being required to satisfy Trotta test for production in support of anticipated fresh evidence application — Trotta analysis not applying as accused's motion was properly described as one for directions with respect to scope of Crown disclosure — Identity of author of e-mail not covered by privilege — Defence motion for disclosure of redacted portion of information allowed.

The accused police officer was convicted of attempting to possess cocaine for the purpose of trafficking and other offences. At trial, he claimed that he was a "stooge" for his supervising officers, R and W. The trial judge made negative credibility findings with respect to R and W but rejected the accused's claim. After the accused was convicted, the police received an anonymous e-mail alleging misconduct by R and W dating back decades. The Internal Affairs Bureau investigated and determined the identity of the author. The Crown provided a redacted summary of information from the investigation but asserted confidential informer privilege over information disclosing the identity of the author. The accused brought an application for disclosure of the redacted portions of the information.

Held, the application should be allowed.

The identity of the author of the e-mail was not protected by informer privilege. There was no conduct on the part of the police, express or implied, that could have led the author of the unsolicited e-mail to believe that his or her identity would be protected. Public interest privilege also did not apply. The Crown attempted to satisfy its burden of establishing the need to keep the identity of the author secret by alleging that the author's mental health issues, fear of police and fear of retribution engaged public interest privilege. However, as there was no objective evidence underlying the author's fears, the Crown's burden was not met.

The Crown argued that the accused was required to satisfy the Trotta test for production in support of an anticipated fresh evidence motion. The Trotta test [page169] had no application to the accused's motion because, although it was framed as an application for production under s. 683 of the Criminal Code, the motion was more properly described as one for directions with respect to the scope of Crown disclosure.

R. v. Named Person B, [2013] 1 S.C.R. 405, [2013] S.C.J. No. 9, 2013 SCC 9, 440 N.R. 1, 2013EXP-665, J.E. 2013-362, EYB 2013-218364, 356 D.L.R. (4th) 264, 294 C.C.C. (3d) 1, 100 C.R. (6th) 1, 106 W.C.B. (2d) 616, apld

R. v. Trotta, 2004 CanLII 60014 (ON CA), [2004] O.J. No. 2439, 23 C.R. (6th) 261, 119 C.R.R. (2d) 334 (C.A.), consd

Other cases referred to

R. v. Barros, [2011] 3 S.C.R. 368, [2011] S.C.J. No. 51, 2011 SCC 51, 242 C.R.R. (2d) 243, 421 N.R. 270, 2011EXP-3191, J.E. 2011-1785, EYB 2011-197305, 273 C.C.C. (3d) 129, 338 D.L.R. (4th) 219, [2011] 12 W.W.R. 619, 513 A.R. 1, 49 Alta. L.R. (5th) 223, 88 C.R. (6th) 33, 96 W.C.B. (2d) 391; R. v. Palmer, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, [1979] S.C.J. No. 126, 106 D.L.R. (3d) 212, 30 N.R. 181, 50 C.C.C. (2d) 193, 14 C.R. (3d) 22, 17 C.R. (3d) 34, 4 W.C.B. 171

Statutes referred to

Criminal Code, R.S.C. 1985, c. C-46, s. 683 [as am.]

APPLICATION for disclosure of redacted information in connection with an appeal pending from a conviction entered by S.C. Hill J., sitting without a jury, [2010] O.J. No. 2787, 2010 ONSC 1188 (S.C.J.).

Matthew Gourlay, for appellant.

John North and Ruth McGuirl, for respondent.

Frank Addario, as amicus curiae.

The judgment of the court was delivered by

BENOTTO J.A.: —

Introduction

[1] This is an application for disclosure of the redacted portions of information produced to the appellant by the Crown.

[2] The applicant was convicted of unlawful attempt to possess cocaine for the purpose of trafficking, breach of trust by an official, possession of stolen property and simple possession of marijuana. He appealed to this court. While the appeal was pending, Crown counsel provided certain information to counsel for the appellant that had come into the possession of the police post-conviction. That development led to a process that has unfortunately delayed the hearing of the appeal. This motion is the latest step in that process.

[3] The applicant brings this application for disclosure of the identity of a person who provided information to the Peel [page170] Regional Police after his conviction. The Crown alleges that the identity of the person is protected by privilege either as a confidential informant or by way of public interest privilege.

[4] The applicant argues that the only issue for the court to decide is that of privilege. If privilege does not exist, the information should be produced. The respondent, on the other hand, argues that if privilege does not apply, the application remains subject to the two-part test for production articulated in R. v. Trotta, 2004 CanLII 60014 (ON CA), [2004] O.J. No. 2439, 23 C.R. (6th) 261 (C.A.).

Facts

[5] The applicant was a Peel Regional Police officer who unwittingly intercepted a RCMP-controlled delivery of imitation cocaine. The fake cocaine was packaged in the shape of bricks, each weighing one kilogram. The applicant had 15 bricks in the trunk of his police cruiser and took them home. Tracking devices installed in the bricks led the RCMP to locate them inside a Sea-Doo in the applicant's garage. They also found 443 grams of marijuana and some stolen property.

[6] The applicant's defence was that he did not know the bricks were cocaine and that he took them home on the orders of his supervising officers Detective Rykhoff and Constable Williams. In short, he took the position that he was a "stooge" for these bosses. The information that is the subject of this application relates to allegations of misconduct against these supervising officers.

[7] The applicant's trial lasted for 33 days. Detective Rykhoff and Constable Williams testified, as did the applicant. The trial judge's decision convicting the applicant is 141 pages long. As his findings with respect to the applicant, Det. Rykhoff and Const. Williams are of particular relevance to this application, it is necessary to summarize the trial judge's findings in some detail. He made the following findings of fact:

He rejected the applicant's evidence that he did not believe the bricks contained an illicit narcotic.

He rejected the applicant's evidence that he did not know how the box containing the 15 packages of fake cocaine got into the trunk of his police vehicle and that he was surprised to find them there.

He found that the applicant took the packages home "on his own", believing that they contained cocaine or some other narcotic that would have significant value. [page171]

He found that the applicant's account of how the 15 packages ended up in the closed hatch of the Sea-Doo was not credible.

He rejected the submission that Det. Rykhoff and Const. Williams colluded to tailor their evidence to frame the applicant. He added [at para. 516] that there was "next to no prior relationship between the two and . . . no credible basis for believing that [Const.] Williams engaged in any criminality or was co-opted into a cover-up of some type".

He made findings of credibility against Det. Rykhoff and instructed himself to be [at para. 465] "very suspect of [Det.] Rykhoff's evidence in its entirety". The trial judge's findings included [at para. 464] the fact that

-- he was "an unimpressive witness in many respects";

he was "caught" in "what can only be described as a number of lies";

there were instances of the witness "seriously misleading the court"; and

-- he was "highly evasive".

He also made findings of credibility against Const. Williams, describing him as [at para. 466]

-- "An uncomfortable and at times evasive witness";

-- a witness who

-- "distinguished himself in misleading the court";

would "change answers on the same subject, apparently when he could not recall his prior response";

"misled the RCMP", "misled the prosecutor" and gave answers that were "equally convoluted and not creditworthy"; and

-- would "shrug off discrepancies".

He found [at para. 519] that, notwithstanding the "caution needed to approach the testimony of [Det.] Rykhoff and [Const.] Williams", he was satisfied beyond a reasonable doubt that the applicant took the 15 bricks believing they contained cocaine.

[8] The applicant was sentenced on October 15, 2010. Ten months later, an anonymous e-mail was received by the Peel [page172] Regional Police. The e-mail alleged misconduct by Det. Rykhoff and Const. Williams dating back decades. The Internal Affairs Bureau investigated and determined the identity of the author. The existence of the investigation was disclosed to the applicant's counsel, who requested disclosure of the author's identity.

[9] The Crown provided a redacted summary of information from the investigation but asserted confidential informer privilege over information disclosing the identity of the author.

[10] Mr. Addario was appointed amicus to assist the court. Counsel agreed that Mr. Addario would interview the author, and he did so. A redacted version of his contact with the author was provided to the applicant, and Mr. Addario is the only person to have spoken to the author. It is clear from the record that the author has had extensive prior involvement with the police, has mental health issues and wants his or her identity protected.

The Positions of the Parties

[11] The applicant submits that the author may have information that would support an application to adduce fresh evidence on appeal. In particular, the author may have information about a prior relationship between Det. Rykhoff and Const. Williams. This information, it is argued, would have undermined the finding of the trial judge that there was next to no prior relationship between the two officers. The applicant argues that the author's identity is not privileged and that the information should therefore be disclosed. He submits that there is no need to address the Trotta test for production, as privilege was the only reason that Crown did not produce the information sought.

[12] The respondent submits that the identity of the author is protected by privilege. As a result, the applicant must bring himself into the "innocence at stake" exception which, in light of the trial judge's findings, is not engaged. In any event, the respondent argues that the information is irrelevant, unreliable and could not have affected the verdict. It argues that the court is required to apply the Trotta test for production and that the test is not satisfied here.

[13] The amicus provided an overview of the law without proposing a conclusion.

Issues

[14] There are two issues to be considered:

(1) Is the identity of the author of the e-mail protected by privilege, either as a confidential informant or by way of public interest? [page173]

(2) Does the Trotta test apply to the request for production?

Analysis

Privilege

[15] In my view, the identity of the author is not protected by either informer or public interest privilege. There is therefore no need to determine whether the "innocence at stake" exception is engaged.

[16] I turn first to the issue of informer privilege. It was submitted that the law is not clear on this point. The leading cases analyze informer privilege on the basis that some promise of confidentiality express or implied is necessary. However, in R. v. Barros, [2011] 3 S.C.R. 368, [2011] S.C.J. No. 51, 2011 SCC 51, Binnie J. seems to have left open the question when he stated, at para. 32: "it might be argued that in a situation of serious potential danger, the informer privilege (or other public interest privilege) might apply even in the absence of the contract-type elements of offer and acceptance".

[17] In my view, this matter was settled in R. v. Named Person B, [2013] 1 S.C.R. 405, [2013] S.C.J. No. 9, 2013 SCC 9, at para. 18, when Abella J. confirmed that there must be some conduct on the part of the police from which a promise of confidentiality could be inferred, either expressly or implicitly:

The legal question is whether, objectively, an implicit promise of confidentiality can be inferred from the circumstances. In other words, would the police conduct have led a person in the shoes of the potential informer to believe, on reasonable grounds, that his or her identity would be protected?

[18] In this case, there was no conduct on the part of the police, express or implied, that could have led the author to believe that his or her identity would be protected. The police merely received an unsolicited anonymous e-mail. The test for informer privilege is not satisfied on the facts of this case. (This is unlike a "crime stoppers" communication which is founded on a promise of anonymity.)

[19] I similarly conclude that public interest privilege does not apply. Public interest privilege involves a claim by a government or an official that certain information should be kept secret. Typical situations involve the need to keep police investigative techniques confidential or the protection and safety of individuals. The Crown has the burden of establishing the need to keep the identity of the author secret. The Crown attempted to satisfy this burden by alleging that the author's mental health issues, fear of police and fear of retribution engage public interest privilege. However, there is no objective evidence underlying the [page174] author's fears. On the record before us, the Crown's burden has not been met.

[20] The identity of the author of the e-mail is not covered by privilege, either as a confidential informant or by way of public interest.

The "Trotta" test

[21] When production is sought in support of an anticipated fresh evidence application, Trotta provides a two-step framework:

(1) The applicant must first demonstrate a connection between the request for production and the proposed fresh evidence application. It must be shown that there is a reasonable possibility that production will assist the applicant in developing or obtaining information that will be admissible as fresh evidence.

(2) Next, the applicant must demonstrate that there is some reasonable possibility that the evidence to which the production request is linked may be received as fresh evidence on appeal.

[22] The applicant submits that the only issue for the court to determine is that of privilege and that there is no need to apply the Trotta test at all. He submits that, but for the assertion of privilege, the Crown would have produced the information sought and it should therefore be produced. However, he argues that if this court decides that the Trotta test applies, the test is met and production should be ordered.

[23] In contrast, the Crown argues that this court is required to apply the procedure set out in Trotta. It takes the position that apart from privilege, the identity of the author is irrelevant and that any investigation by the applicant in connection with this person would not support a fresh evidence application and would amount to a complicated fishing expedition. It therefore submits that the applicant cannot meet the Trotta test and that production should not be ordered.

[24] In my view, it is premature to apply the Trotta test. However, in light of the submissions, I will set out the Trotta analysis so that the parties will have a clear understanding of its parameters as the matter moves forward.

[25] Were the Trotta test to apply, the application at this stage would not succeed. The second branch of the test would require the court to find that the author of the e-mail would likely provide information that would lead to a reasonable possibility of [page175] admission as fresh evidence on appeal. The principles governing the admissibility of fresh evidence on appeal are outlined in R. v. Palmer, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, [1979] S.C.J. No. 126. The Palmer test requires the applicant to satisfy four criteria: (i) the evidence could not have been adduced at trial; (ii) the evidence must be relevant in that it bears on a decisive or potentially decisive issue; (iii) the evidence must be reasonably capable of belief; and (iv) the evidence must be such that, if believed, it may have affected the result at trial.

[26] On the information before the court, the Palmer criteria would not be satisfied. First, the quality of the author's information renders its credibility highly suspect. Second, the findings of the trial judge are such that even if believed, the author's information could not reasonably have been expected to affect the result.

[27] The author claimed to have information about misconduct by Det. Rykhoff and Const. Williams. However, this information is decades old and unsubstantiated. An Internal Affairs investigation uncovered no documented contact between the author and these officers. The author makes no suggestion that there was any prior relationship between Det. Rykhoff and Const. Williams, and the police provided an affidavit indicating that Det. Rykhoff and Const. Williams did not work together or in departments close to one another during the time period to which the author's comments refer. They did work at the same division from 1990-1992, but on different shifts and in different departments. The same Internal Affairs investigation revealed a history of frivolous claims against the police by the author. The author has mental health issues, a history of addiction to drugs and alcohol, a history of violence and an animus against the police. These factors impact the author's credibility.

[28] The second issue is whether the author has any evidence that could have affected the result at trial. The applicant submits that the proposed evidence could have affected the result because the trial judge rejected the applicant's defence in part because he was not persuaded that Det. Rykhoff and Const. Williams had a significant prior relationship or that Const. Williams had engaged in any criminality. The author's information does not suggest that Const. Williams and Det. Rykhoff ever engaged in misconduct together. Given the basis on which the trial judge drew his conclusions, his findings could not reasonably have been affected by the author's information. The trial judge rejected the applicant's explanation for having taken the fake cocaine home: he found the testimony implausible, [page176] inconsistent and full of transparent falsehoods. The author's evidence would not have any bearing on this assessment.

[29] More importantly, the trial judge made credibility findings against Det. Rykhoff and Const. Williams. He stated that Det. Rykhoff was probably involved in taking some of the fake cocaine. He was suspect of Det. Rykhoff's testimony in its entirety. He made equally negative findings against Const. Williams. The trial judge concluded that the testimony of both officers was highly suspect. Even if the author has information against these two officers, it could only reinforce, not change, the findings of the trial judge.

[30] This would be the Trotta analysis as applied to the information currently available to the appellant and placed before this court. It would, however, be premature to subject that information to the Trotta analysis. Although framed as an application for production under s. 683 [of the Criminal Code, R.S.C. 1985, c. C-46], the real issue before the court was whether the author of the e-mail was a confidential source. The application was framed and argued as one that was preliminary to an application for production. In my view (and without intending any criticism of counsel who were in a rather unique situation), the motion is more properly described as a motion for directions with respect to the scope of Crown disclosure.

[31] The distinction between a motion for production and a motion for directions in respect of Crown disclosure may be difficult to draw. It is probably impossible to draw a bright line between the two. I think it is best to approach each case having regard to exactly what is sought by the appellant and its potential impact on the putative fresh evidence application. Ultimately, the court is concerned both with allowing the appellant an opportunity to pursue realistic fresh evidence possibilities and with the hearing of appeals in a timely fashion. The characterization of any particular motion brought in the context of a proposed fresh evidence application must, to some extent, be a reflection of how those twin purposes can best be served. Here, the issue was a narrow one: was the author's identity confidential?

[32] The Crown, quite rightly, disclosed the information received from the author and the results of the police investigation in redacted form. In doing so, the Crown was in no way conceding the relevance of any of the material to the appeal or its obligation to produce any related material should the appellant ultimately bring a production motion. The Crown, again quite rightly, redacted the information that could identify the informant pending a judicial determination of the privilege issue. [page177] Clearly, the Crown had determined that having regard to its broad disclosure obligations, the substance of the information it had received should be disclosed. The Crown did not argue Trotta on the application except in response to a specific inquiry by the court. The Crown objected to disclosure of the identity of the author solely on the basis of privilege.

[33] The Crown's claim for privilege with respect to the redacted information cannot stand. Since this was the basis for redacting the information produced, the redacted portions of the documents should now be provided, subject to the five areas relating to privacy issues that were identified during an in camera portion of the application.

[34] In light of the delays that have occurred thus far, Justice Doherty will assume a case management role to establish timelines and to determine any additional disclosure issues so that the ongoing delay is minimized.

Conclusion

[35] The identity of the author of the e-mails is not covered by privilege. The Trotta analysis is premature. The Crown is to provide unredacted copies of the documents already produced, subject to the privacy issues discussed in camera. Justice Doherty will case manage the matter with a view to a timely date for a hearing on the merits of the appeal.

[36] I would therefore allow the application.

Application allowed.

End of Document