Court File and Parties

Information No. 13 – 311

Ontario Court of Justice (at Cayuga, Ontario)

Between:

Her Majesty the Queen (Respondent)

- and -

Brian Julian (Applicant)

Counsel:

• Mr. D. King for the Crown
• Mr. D. Paquette for Brian Julian

Ruling on an Application

The Application

[1] Mr. Julian seeks disclosure of the identities of two confidential informants, C and D, whose information formed the substantial basis for a warranted search of his home. He argues his innocence is at stake and he may be found guilty without this information.

[2] Julian ran a marijuana grow at his rural property. As a result of the search on July 15, 2011, he is being tried, inter alia, for possessing a semi-automatic assault rifle and an illegal capacity magazine that used 7.62x39 mm ammunition. The magazine was loaded with 18 rounds. The items were found hidden together in the basement of the home that he shared with his wife and children.

[3] For the reasons that follow this application is dismissed.

The Law

The Principles

[4] Confidential informer privilege plays a vital role in law enforcement. It is premised on the protection of citizens performing their duty to aid in law enforcement. The privilege may conflict with the state's disclosure obligations. If that occurs the privilege of confidentiality is paramount. It may only be permitted to give way, if the accused's innocence is truly at stake and the only way to demonstrate that innocence is by piercing the veil of the informer's privilege.

[5] These principles were recently restated in R. v. Lucas, 2014 ONCA 561:

The point of departure is to recognize the extent and importance of the privilege protecting the identity of the confidential informants. Informer privilege has been described as "nearly absolute": … It is a class privilege, subject only to the "innocence at stake" exception and is "safeguarded by a protective veil that will be lifted by judicial order only when the innocence of the accused is demonstrably at stake.

[6] In order to raise the exception there must be a basis on the evidence for concluding that disclosure of the informer's identity is necessary to demonstrate the innocence of the accused. Mere speculation that the information might assist the defence is insufficient. The privilege must yield to prevent a person from being condemned when his innocence can be proved. The Supreme Court identified two situations of this sort; viz where the informer is a material witness to the crime or acted as an agent provocateur.

[7] A third situation where an accused might properly seek disclosure of information that may incidentally reveal the identity of the informer is where there is evidence suggesting that the goods seized in the execution of a search warrant were planted. To establish that the informer planted the goods or had information as to how they came to be planted, the accused might properly seek disclosure of information that may incidentally reveal the identity of the informer. That is the basis upon which this application was advanced.

Innocence at Stake

[8] In R. v. Yakubu, [2006] O.J. No. 4864 (SCO), Corbett J. analyzed the concept of innocence being at stake. He noted that an accused's innocence is at stake in every criminal trial. However, given the nearly absolute privilege of informer confidentiality the concept denotes something well beyond the disclosure of information that might be helpful to an accused's defence. "The information must be critical to the accused's defence, and there must be no other way to put the evidence to the jury …" Corbett J. amplified this requirement at paragraph [21]:

It is not necessary that the accused be able to show that the information to be obtained by disclosure of the confidential informant will establish innocence affirmatively, although obviously such a case would cry out for disclosure. Our system of criminal justice never requires an accused person to demonstrate his innocence. The burden of proof never shifts from the Crown to the accused or from proof beyond a reasonable doubt to proof on a balance of probabilities. If the accused raises a reasonable doubt, then the accused is acquitted. If the accused is acquitted, then the accused leaves the court an "innocent" man. And so, the threshold for piercing informant privilege turns on whether the evidence is critical to the accused raising a reasonable doubt as to his guilt, and not whether the evidence will affirmatively demonstrate his innocence.

Timing of the Application

[9] Generally, the application ought to be delayed until the end of the Crown's case. This permits the trial judge to assess the strength of the Crown's case against the accused which informs the assessment of whether the accused's innocence is truly at stake.

Procedures

[10] R. v. Marshall, [2005] O.J. No. 3549 (C.A.) at paragraph [102] holds that the "innocence at stake" exception for confidential informant privilege is the same as that for solicitor-client privilege and hence, the same procedures apply to determine whether the privileged veil of confidentiality should be pierced. Those procedures require a court to proceed through the following stages:

(A) The Threshold Test

To satisfy the threshold test, the accused must establish that:

1. the information he seeks from the confidential informant communication is not available from any other source; and

2. he is otherwise unable to raise a reasonable doubt.

If the threshold test is not met the privilege stands and the judge need go no further. If the threshold has been satisfied, the judge should proceed to the innocence at stake test, which has two stages:

(B) The Innocence at Stake Test

Stage 1: The accused seeking production of the confidential informant communication has to demonstrate an evidentiary basis to conclude that a communication exists that could raise a reasonable doubt as to his guilt.

Stage 2: If such an evidentiary basis exists, the trial judge should examine the communication to determine whether, in fact, it is likely to raise a reasonable doubt as to the guilt of the accused.

It is important to distinguish that the burden in the second stage of the innocence at stake test (likely to raise a reasonable doubt) is stricter than in the first stage (could raise a reasonable doubt).

If the innocence at stake test is satisfied, the judge should order disclosure of the communications that are likely to raise a reasonable doubt. The onus is on the accused to establish each element of the test on a balance of probabilities.

The Evidence

The Defence Evidence on the Application

[11] Mr. Julian and his wife, Shari, adopted their affidavits sworn in support of the application and each denied knowledge of the assault rifle or its magazine. Shari Julian testified that she would not have permitted such a weapon into her home had she known about it as she had young children in the house. Both testified about an exterior door leading directly into their basement, the security arrangements for their house and grounds and the access their employees had to the house and basement. Each also testified about several individuals who, as a result of financial or other disputes or disappointments with the accused, may have had the motive and the opportunity to plant the items in their basement.

[12] The police found a loaded 12-gauge Savage shotgun and a loaded .30-30 Winchester rifle under the mattress in the couple's bedroom. Mrs. Julian knew that her husband had those weapons. She had asked him to get some protection for the family after one of their night watchmen was badly beaten by an intruder. However, she thought he was storing them in their unattached garage and she did not know they were under their mattress. She explained that the mattress was so heavy that she could not fit sheets around its corners without her husband lifting them for her.

[13] Notably, Shari Julian testified that at the time of the execution of the search warrant a police officer repeatedly demanded of her "where's the handgun?" and told her that things would go more smoothly if she simply produced it.

[14] Julian acknowledged possession of the long guns under his mattress. The shotgun was his grandfather's and the Winchester was his father's. He brought them home a "couple of months" before July 15th because a night watchman had been attacked and badly beaten. His grow operation created security issues that resulted in break-ins "all the time."

[15] He denied any knowledge of the assault rifle and magazine found in his basement or of the ammunition designed to be used in that rifle or magazine and he denied possession of any handgun appropriate to the 9 mm ammunition that the police also located. He said that when he asked his father if there was any ammunition for the shotgun and Winchester rifle his father gave him a black box and said, "There's a whole bunch of shit in there, just take it." So he did and put it in his kitchen cupboard.

[16] Given the time from his arrest to reflect, he has come to the conclusion that the assault rifle and magazine must have been planted or someone must have stored them at his house without his knowledge. On a daily basis many people attend on his property and at his home; six or seven on a routine day. He has two full-time employees, other people working on "their own stuff", scores of volunteers and many people who come to his home for assistance in making their own applications for medical marijuana.

The Other Suspects

[17] The Julians identified several individuals who may have had both a motive and the opportunity to plant the assault rifle and its loaded magazine. In the briefest of compass their evidence and theories with respect to each are footnoted below.

A Summary of Salient Crown Evidence

[18] O.P.P. Officer Trevor Pitts searched the cluttered and unfinished basement of Julian's home. He located an air hockey table set against a back wall behind the basement steps. A sleeping bag was sandwiched between the top of that table and an empty cardboard box that once held some sort of weight-reducing device. On top of the box was a scrunched up yard-waste bag. Pitts searched the sleeping bag and found that wrapped within it was an assault rifle and a "banana-clip" magazine containing 18 rounds. The magazine was not seated in the firearm but was wrapped up with it in the sleeping bag. The headboard and footboard of a bed were leaned up against the air hockey table and a door was leaned against those parts of the bedstead according to a photo exhibited.

[19] O.P.P. Officer Jeff Ordronneau searched the master bedroom. Shari Julian told him that "…there may be something under the bed." (sic) Under the left side of the mattress he found a .30-30 Winchester rifle loaded with four rounds, (one of which was chambered.) When Ordronneau lifted the other side of the mattress he found a 12‑gauge Savage pump-action shotgun loaded with three shells.

[20] Ordronneau went next to the garage, (also referred to by some as a drive shed.) There he located a large hard plastic case. In it he found 10 boxes of 9 mm "Luger" handgun ammunition. Each box contained 50 rounds. In the same case he found four boxes of shotgun shells, with each box containing five shells.

[21] Next and nearby he searched a freestanding metal toolbox equipped with a number of drawers. In the second from the bottom drawer he found a plastic bag containing 24 paper sleeves. Each paper sleeve held ten rounds of the 7.62x39 mm ammunition. This was the same calibre of ammunition that the assault rifle and its illegal capacity magazine used.

[22] O.P.P. Officer Lee Fulford searched the kitchen of the Julian home. He found 11 shotgun shells in a cup on the second shelf of a kitchen cupboard and four more boxes of ammunition in the same cupboard, including one box of 9 mm rounds, a full box of 20 7.62 (i.e. 7.62x39 mm) rifle rounds and two boxes of .30-30 shells. One of the latter contained 13 live rounds and one spent round and the second box was a complete box of 20 live rounds.

The Submissions of the Accused

[23] Mr. Paquette submitted that the warrant was sought urgently and redacted so severely that resort to "Step 6" was required to sustain it. The speed with which the warrant was sought lends support to the inference that the gun was planted shortly beforehand. Moreover, a bald denial may be of little worth since it is effectively impossible to prove a negative. The defence has presented evidence of people who may have planted the items. If the informants turn out to be any one of these four other suspects then the defence could call them to the stand and the likelihood of an acquittal on these counts escalates significantly. The absence of this disclosure may result in the conviction of an innocent man.

[24] On occasion in the cases cited it has been suggested that calling the CI would merely result in a denial of involvement by that witness to no useful purpose. Mr. Paquette submitted that that ought not to be presumed. Rather, the appropriate analogy is to not speculate about or presume what might be the result of such an examination, in similar fashion to counsel's conference with a detainee in a drinking and driving scenario. Providing the identities of Sources C and D may support Mr. Julian's account and so avoid an injustice. Identifying Sources C and D will allow Mr. Julian to make full answer and defence. Mr. Julian should be entitled to the identities of C and D if either or both are one of his named "other suspects."

The Submissions of the Crown

[25] While Mr. King spent some time detailing the inconsistencies or incongruities between the police evidence and what he characterized as the speculative theory of the defence, his basic submission was simply this: privilege should only be permitted to give way, if the accused's innocence is truly at stake and the only way to demonstrate that innocence is by piercing the veil of privilege. That is clearly not the case here since the defence can call a whole slew of witnesses, including the four putative other suspects and Julian's many employees, volunteers and home visitors to demonstrate the porous nature of his home security and the potential for access to that home in an attempt to raise a reasonable doubt. Mr. King stressed that the privilege is hallowed and, indeed, sacrosanct. His position is that this application fails to meet the threshold test that requires the accused to establish the information the defence is seeking is not available from any other source; and he is otherwise unable to raise a reasonable doubt.

The Defence Response

[26] In response Mr. Paquette urged that an accused is not limited to one defence and that Mr. Julian should not be deprived of demonstrating the strength of his claim of innocence by showing that one of his other suspects was the confidential informant whose information caused the search to be conducted. A failure to make the order sought will deprive Mr. Julian of the opportunity to make full answer and defence. Mr. Paquette urged that protecting the innocent ought to trump informer privilege. He is right, of course, but only when the defence establishes that the information is not available from any other source; and he is otherwise unable to raise a reasonable doubt.

Discussion

[27] This application fails to meet the threshold test that requires an accused to establish that the information he seeks is not available from any other source and that he is otherwise unable to raise a reasonable doubt. Mr. Julian can attempt to raise a reasonable doubt through other witnesses and by attempting to pursue an "other suspect" defence. He is able to call evidence about the porous access to his home, particularly his basement, in an attempt to raise a reasonable doubt. In light of the inability of the defence to meet the threshold, this application devolves into a fishing expedition mounted in the hope that something useful to the defence might be caught. While that is sufficient to dispose of this application, I propose to review the facts and results in a few of the other cases of this sort.

[28] In Yakubu Corbett J. ordered disclosure of the name of the CI. Yakubu's roommate was the target of the search warrant. The CI said Yakubu's roommate hid drugs in places that the roommate had no connection to in order to avoid apprehension. Drugs were found in Yakubu's desk drawer. In light of the positions taken by the Crown, which precluded Corbett J. from placing the police theory about the roommate before the jury, all that Yakubu had available to him was a bald denial. Corbett J. felt that was tantamount to a conviction. Hence, Yakubu's innocence was at stake and he was otherwise unable to raise a reasonable doubt.

[29] In R. v. Gnanachandran, [2005] O.J. No. 2985 (SCO), the accused's application to identify a tipster or tipsters was dismissed. Two calls were made to police identifying a vehicle and describing a man who had placed a gun into that vehicle's trunk. The police conducted a warrantless search and found a loaded AK47. The accused claimed he was being framed and that the items were planted, probably by an ex-roommate. He needed to know the identity of the tipster to make full answer and defence. MacKenzie J. held that it was mere speculation that identifying the tipster would assist the accused in his defence. In arriving at that conclusion MacKenzie J. considered what he termed the inherent contradictions in the accused's evidence and the absence of any reliable evidence of motive to frame the accused. Considering the evidence adduced at the trial MacKenzie J. rejected the contention of the accused that he was unable to raise a reasonable doubt without recourse to disclosure of the CI's identity.

[30] Similarly in R. v. Doucette, [2009] O.J. No. 4998 (SCO) Conway J. dismissed an application to identify the CI. There a CI said he had seen guns and crack in Doucette's bedroom and the police found a Taurus .357 magnum and 245 grams of crack in the bedroom. Doucette alleged that the CI or some third party planted the items or there was no CI and the police fabricated the tipster and planted the items.

[31] Conway J. held that the threshold test was not met; that Doucette had not established that the information sought from the CI was not available from any other source, (viz the accused's parents as to who came and went from his bedroom in their home,) and that without this information the accused was unable to raise a reasonable doubt.

[32] Conway J. dealt with the defence theories as follows: (i) if someone other than the CI planted the items, the CI would have no knowledge of that and so that CI's identity was irrelevant in that case; (ii) the hope that if the CI was identified the CI would admit to being the planter of the items was speculative; (iii) if the police planted the items the CI would have no knowledge of that; and, (iv) there is no authority to support the proposition that CI privilege can be pierced to demonstrate that there actually is a CI. In short, given the circumstantial nature of the case, the defence failed to establish that the CI had information that was not available from any other source. At its highest this was a fishing expedition, a speculative exercise mounted in the hope of gleaning information that might support one of the several alternative defence theories.

[33] For the reasons given, the application is dismissed.

Dated at St. Catharines, this 29th day of July 2014

J.S. Nadel (OCJ)