Court File and Parties

Date: January 13, 2017

Court File No.: Brampton 14/14832/01/02

Ontario Court of Justice

Between:

Her Majesty the Queen Respondent

— And —

Gus Basios and Konstantinos Basios Applicants

Before: Justice Paul F. Monahan

Heard on: November 28 and 29, 2016

Reasons for Decision on the Application by Gus Basios and Konstantinos Basios for Disclosure of Documents released on: January 13, 2017

Counsel

Ms. M. Hourigan — counsel for the Public Prosecution Service of Canada

Mr. R. Rusonik — counsel for the applicant Gus Basios

Mr. D. Brown — counsel for the applicant Konstantinos Basios

MONAHAN J.:

Introduction and Overview

[1] The applicants have been arraigned before me on charges of possession of cocaine for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act (the "CDSA") and possession of proceeds of crime, contrary to s. 354(1)(a) of the Criminal Code of Canada (the "Code").

[2] A search warrant was issued on November 28, 2014 by Justice of the Peace B. Norton on the basis of an Information to Obtain (the "ITO") sworn by Peel Regional Police Constable Sarah McEachern. The police claim to have found 61.9 grams of cocaine, $82,150 CDN, a digital scale, two iphones, safe keys and a "BB" gun.

[3] The applicants submit in their Notice of Application that Constable McEachern relied almost entirely on information from a person said to be a confidential informant which information was relayed to Constable McEachern by Peel Regional Police Constable Sean Osborne (see the Notice of Application, para. 5).

[4] The Notice of Application seeks an order that the Crown disclose Constable Osborne's notes of his meetings with the claimed confidential informant, the Peel Regional Police records of when consideration was paid to the informant, and any other documents referring to or containing information related to the investigation of the applicants.

[5] At the time the application was heard before me the applicant's requests for documents was restated and expanded, in my view, as follows:

(i) Any and all documents laying out or reporting an investigative plan to try to obtain a search warrant;

(ii) Documents alleged required to be maintained in relation to claimed informants by a Peel Regional Police officer pursuant to a Peel Regional Police directive (the "Directive"), namely,

a. a detailed record of each contact with the claimed information-handler's notes or contact/debriefing reports, as they are subsequently referred to in the Directive;

b. requests for money for the claimed informant; and

c. the record of all payment transactions and receipts with regard to the claimed informant; that is, what monies he or she was given.

[6] The Peel Regional Police Directive referred to above was provided by the defence to the Crown and the Court at the outset of the application. It is not attached to any affidavit or put before the Court in a proper evidentiary manner. At the time of the hearing of the application, the Crown was not in a position to verify the accuracy of the document but did not wish to derail the hearing of the application in order to verify the document, or not as the case may be. The Crown did acknowledge that when Peel Regional Police use someone they claim is a confidential informant, or agent, the police keep notes of their dealings with the informant or agent. The notes are made at the time of the dealing or generated after the meeting. Therefore, it was common ground between the Crown and the defence, apart from the Directive, that there would be notes of dealings by the police with the confidential informant/agent. Accordingly, I have proceeded to hear this application on this basis of this acknowledgement by the Crown rather than on the basis of the Directive, which as indicated above, was not properly before me as a matter of evidence.

[7] In a similar evidentiary vein, the Crown provided the Court with a "will say" statement of Constable McEachern which sought to supplement the record as to how the ITO came about. The defence objected to the admissibility of this document on the application but during argument referred to it in support of its arguments. Given that there was no consent to the admission into evidence of this document, I have not had regard to it on this application.

The ITO

[8] In this case, the search warrant was granted by Justice of the Peace Norton on November 28, 2014. As indicated above, Constable McEachern was the affiant of the ITO. Constable McEachern appears to have had limited involvement in this case.

[9] The ITO is before the Court on this application edited to protect the identity of the claimed confidential informant. The ITO relies almost entirely on what is known as Appendix "D" which appears to be information provided by Constable Osborne, the handler of the informant, concerning his dealings with the claimed confidential informant. Beyond drafting at least part of the ITO, Constable McEachern's only involvement appears to come on November 27, 2014 (the day before the warrant was requested and obtained) when she conducted some police computer inquiries on one of the applicants and received information from another police officer who confirmed that one of the applicants lived at the address apparently given by the claimed confidential informant.

[10] The ITO refers to the informant as a confidential informant throughout the ITO and includes the statement that "a confidential informant provided information to the police with the understanding that the confidential informant's identity would be protected". As to how and when this understanding came about, the redacted ITO does not specifically say.

[11] The ITO discloses that the claimed confidential informant was entrenched in a criminal lifestyle and had provided information in another case which had led to a CDSA search warrant where a party was arrested and charged. The ITO also discloses that "the confidential informant has provided information pertaining to several parties actively dealing drugs which have (sic) police have been able to corroborate and are actively pursuing investigations".

[12] The ITO discloses that the confidential informant "has been utilized as an informant [over 6 months]".

[13] The ITO indicates that the "CI understands that before [consideration] is provided an arrest and seizure must be made" and "it is understood that they gain nothing if arrests or seizures are not made".

[14] The ITO discloses that the claimed confidential informant gave Constable Osborne information about one of the applicants over a series of 5 meetings in 2014.

[15] The ITO continues as follows: at the first meeting, the informant told Constable Osborne that he or she knew a man in his late thirties named Gus who sold cocaine and that the informant had been buying product from Gus for specified prices. At the second meeting, the informant viewed a picture of the applicant Gus Basios and confirmed that he was the person he or she had been talking about. No details have been given about the third meeting due to claimed confidential informer status. At the fourth meeting, the informant said he or she had purchased what I assume was an illegal drug from the applicant Gus Basios. At the fifth meeting, the informant said the applicant Gus Basios was still selling cocaine and the informant had purchased it from him.

Position of the Parties

[16] It is the position of the applicants that the documents sought meet the "reasonable possibility" or "reasonable likelihood" test enunciated in R. v. Ahmed, [2012] O.J. No. 6643 (Superior Court) (per MacDonnell J.) and R. v. McKenzie (2016), 2016 ONSC 242, 26 C.R. (7th) 112 (Superior Court) (per K.L. Campbell J.). The applicant's principal argument is that the documents sought will assist the applicants in establishing that the claimed confidential informant was actually a police agent and that the affiant knew or ought to have known about this fact and that it should have been disclosed in the Information to Obtain (ITO).

[17] The applicants also argued that the documents sought formed part of the investigative file and were also producible on this basis. To be clear, this was not the primary position of the applicants apparently because the applicants recognized that the weight of the case law in Ontario suggests that the documents sought do not form part of the investigative file.

[18] The applicants' position was that if the Court were to order some or all of the documents, the Crown could take the position that blanket confidential informant privilege applied to the documents or that portions of the documents should be edited to protect the identity of the claimed confidential informant. The defence was not agreeing that the documents were in fact subject to a blanket confidential informant privilege; the defence was simply attempting to frame the issue on this application as being a matter of whether the court should order disclosure or not and that the question of blanket confidential informer privilege or redaction should be determined at a later time, if necessary.

[19] It was the Crown's position that the request for documents was a fishing expedition based on a speculative theory that the claimed confidential informant was a police agent. The Crown submitted that the applicants' requests for documents should be summarily dismissed.

Law

Introduction and Context

[20] The applicants' request for documents arises in the context of a position advanced by the applicants that the search warrant granted was in violation of the applicants' rights under s. 8 of the Charter of Rights and Freedoms (the "Charter") and that the evidence obtained relating to the warrant ought to be excluded pursuant to s. 24(2) of the Charter (see the Notice of Application, para. 18). This is a Garofoli Application named after the Supreme Court of Canada's decision in R. v. Garofoli, [1990] 2 S.C.R. 1421.

[21] It is well established that a person seeking ex parte authorization such as a search warrant has an obligation to make full and frank disclosure; see R. v. Morelli 2010 SCC 8 at para 44.

The Principles to be Applied to a Request for the Disclosure of Documents in the Garofoli Context

[22] The leading cases in Ontario on the disclosure of documents in the Garofoli context are Justice MacDonnell's decision in Ahmed, supra, and Justice Campbell's decision in McKenzie, supra. These cases are consistent with one another and are binding on this Court. On a disclosure application made in the context of a Garofoli application, the following legal principles apply (in setting out these principles I have relied heavily on the judgment of Justice Campbell in McKenzie in particular):

1. The accused's right to make full answer and defence as constitutionalized under s. 7 of the Charter applies at trial and in connection with evidentiary hearings such as a Garofoli application. However, the scope of the disclosure is not necessarily the same in both contexts (see McKenzie, supra, para. 14).

2. In the context of a Garofoli application, the request for disclosure of documents engages at least three competing interests:

i. The accused's right to make full answer and defence;

ii. Practical and contextual limitations which recognize that a Garofoli application is an evidentiary hearing to determine the admissibility of evidence. It is not a criminal trial per se and should remain focused on the central issue in a Garofoli application, namely whether there was any basis upon which the issuing Justice could have properly authorized the warrant; and

iii. Confidential informant privilege must be carefully taken into account as the disclosure to the accused cannot be made of any information which might identify the confidential informant (see McKenzie, supra, at paras. 19-22).

3. On a Garofoli application, the defendant is entitled to access to all documents that were before the issuing Justice, subject to editing for privilege, and any other materials in the "investigative file" relating to the accused (see McKenzie, supra at para. 15-16 and Ahmed, supra at paras. 28 and 30).

4. The accused is entitled to full production of the investigative file, if requested, and subject to privilege, unless the Crown can establish that the material is "clearly irrelevant". This is the disclosure required by R. v. Stinchcombe, [1991] 3 S.C.R. 326 at pp. 333, 338-39. (See McKenzie at para. 18 and 28).

5. Accordingly, determining the scope of the investigative file is of critical importance. The investigative file includes the "fruits of the investigation" against the accused. That is, the investigative file includes all materials accumulated by the police conducting the investigation and relied upon in the search warrant material. Generally speaking, this will include information received by the affiant in relation to an ITO about what the confidential informant said about the involvement of the accused in the alleged offence. (McKenzie, supra, at paras. 18 and 30-33).

6. Accordingly, the "relied upon" element of the investigative file definition is important because it ensures that the accused receives disclosure of everything that was relied upon by the affiant in drafting the ITO. However, not everything which an affiant may have received before completing the ITO will necessarily be said to be "relied upon" by the affiant and therefore required to be disclosed (see McKenzie, supra, at para. 31-32).

7. The police officer who deals directly with the confidential informant is known as the handler. Generally speaking, the handler's notes are not part of the investigative file. Also falling outside the investigative file are,

i. Background information or personal details about the confidential informant;

ii. Police intelligence files about the confidential informant;

iii. Reports to or from the police agency regarding the previous involvement of the confidential informant in other police cases

(see McKenzie, supra, at para. 38 and Ahmed, supra, at para. 30).

8. If the affiant in respect of an ITO communicates directly with the confidential informant, then the affiant's notes of those conversations should be disclosed. Further, where the affiant and the handler are one and the same, the handler's notes are considered to be part of the investigative file and are to be disclosed to the accused. Justice Campbell observes in McKenzie that there is no unanimity in the case law on this point but that the weight of judicial authority supports this proposition (see McKenzie, supra, at paras. 33 and 37).

9. If the affiant receives documents from another police officer about the confidential informant's allegations about the accused, any documentation passed along to the affiant or any notes of the affiant as to the information passed along should be disclosed (see McKenzie, supra, at paras. 33). This would only apply where the said documents or information were relied upon in the drafting of the ITO.

10. Documents outside of the investigative file are presumptively irrelevant. Once a request for documents extends beyond the material before the issuing Justice and the investigative file, any presumption of relevance is "significantly attenuated" (see Ahmed, supra at para 30). However, even if materials fall outside the foregoing categories, they may be still be required to be disclosed to the accused, if the accused can meet the onus of establishing that there is a "reasonable possibility" or "reasonable likelihood" that such materials will assist the Court in relation to an issue on the application to quash the search warrant. This has been described as a "relatively modest onus" (see McKenzie, supra, at para. 39 and 53, and Ahmed, supra, at para. 31). This effectively imports the leave to cross-examine requirements on a Garofoli application into the requirements for a Garofoli disclosure application (see R. v. Bernath, 2015 BCSC 632, [2015] B.C.J. 785 (B.C.S.C.) at para. 61).

11. The Garofoli leave requirement for cross-examination was summarized by Justice Charron for the Supreme Court of Canada in R. v. Pires; R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343 at para. 40 as follows:

As discussed earlier, the Garofoli leave requirement is simply a means of weeding out unnecessary proceedings on the basis that they are unlikely to assist in the determination of the relevant issues. The reason that the test will generally leave just a narrow window for cross-examination is not because the test is onerous - it is because there is just a narrow basis upon which an authorization can be set aside. Hence, in determining whether cross-examination should be permitted, counsel and the reviewing judge must remain strictly focussed on the question to be determined on a Garofoli review - whether there is a basis upon which the authorizing judge could grant the order. If the proposed cross-examination is not likely to assist in the determination of this question, it should not be permitted. However, if the proposed cross-examination falls within the narrow confines of this review, it is not necessary for the defence to go further and demonstrate that cross-examination will be successful in discrediting one or more of the statutory preconditions for the authorization. Such a strict standard was rejected in Garofoli. A reasonable likelihood that it will assist the court to determine a material issue is all that must be shown. (emphasis added)

12. In the recent decision of the Supreme Court of Canada in World Bank Group v. Wallace 2016 SCC 15, the Supreme Court imported the Garofoli leave to cross-examine test into a third party records application in the Garofoli context. The Court in that case said that the party seeking the documents must show that the documents sought will be of probative value and must be capable of supporting the inference that the affiant knew or ought to have known of the errors or omissions. In that case, the Supreme Court said that it was important to distinguish between the affiant's knowledge and the knowledge of others involved in the investigation. It was only documents that were probative of what the affiant knew or should have known that were to be disclosed on a Garofoli application. "If the documents sought for production are incapable of supporting such an inference, they will be irrelevant on a Garofoli application" (see World Bank Group, supra at paras 123 to 139 and in particular at para. 124). The Court did not change the Garofoli leave to cross-examine test; they simply said that the third party records application in the Garofoli context should be "treated alike" (see World Bank Group, supra at para. 125).

Further Discussion of the Case Law Considering Disclosure Requests in the Garofoli Context

[23] In complex cases, the affiant in respect of an ITO will have to distill information from other police officers. For example, in Ahmed, the affiant received reports from 27 handlers of 27 confidential informants and those reports were disclosed to the defence on the Garofoli application but the handler's notes, not received by the affiant, were not required to be disclosed (see Ahmed, supra at paras 6 to 11 and 32) as they were not part of the investigative file and the defence did not meet the reasonable possibility or reasonable likelihood test. In McKenzie, there was one affiant who dealt directly with the confidential informant and the affiant's notes of his or her dealings with the informant were required to be disclosed but further detail and documents concerning the background of the confidential informant and his or her involvement in unrelated investigations was not ordered to be disclosed (see McKenzie, supra at paras 49 to 55).

[24] In R. v. Bernath, supra, Justice Ballance of the British Columbia Supreme Court dealt with a request for, among other things, the handlers' notes relating to three confidential informants. In Bernath, there was an allegation by the defence that there was reason to belief on the face of the ITO that the claimed informant was a police agent (see paras. 19 and 81). The affiant in that case, a police officer, does not appear to have been a handler but did meet directly with the claimed informants in that case. Referring to Ahmed and other Ontario authorities, Justice Ballance said at para. 79:

It seems to me that the imposition of a narrow reading of the meaning of fruits of the investigation or investigative file that may be emerging from the Ontario authorities is at odds with the expansive approach to disclosure established by Stinchcombe and could pose the risk

[25] In ordering the disclosure of the requested documents, Justice Ballance said that "I cannot conceive of how it can be said that the handler notes and source debriefing reports … relied upon by the affiant … could legitimately be characterized as being outside the fruits of the investigation or the investigative file". In addition, Justice Ballance said that even if they were not part of the investigative file, the requested documents met the "reasonable possibility test" as the defendants had pointed to "evidence on the part of the affiant arising on the face of the ITO that calls into question the status of informant "A"' as a confidential informant. The evidence on that point is far more compelling than it was before Holmes J. in Terezakis No. 1." (see Bernath, supra at paras. 80-81).

[26] To the extent that Bernath suggests that the position in British Columbia is different than in Ontario and favours broader disclosure based on an expanded interpretation of the scope of the investigative file, the British Columbia Court of Appeal has made it clear in the recent case of R. v. McKay, [2016] B.C.J. No. 2042 (B.C.C.A) that that is not the case. In McKay, the British Columbia Court of Appeal held that the position on disclosure in the Garofoli context is substantially the same as that outlined in the Ontario cases of Ahmed and McKenzie (see McKay, supra at paras. 128-158 and in particular para. 159). Nevertheless, the British Columbia Court of Appeal in McKay recognized that in Bernath there were grounds for the production of the documents on the reasonable possibility test basis as there was some evidence suggesting that the informant was a police agent (see McKay, supra at paras 94 and 139).

Confidential Informants and Police Agents

[27] The issue of whether a person is a police agent or a confidential informant is a "question of law to be determined by the court, not by the police or the Crown" (see R. v. Lising (2010), 2010 BCCA 390, 337 C.C.C. (3d) 91 (B.C.C.A.) at para 40). While the question of agency is a question of law, like any question of law, it must be decided on the basis of a factual matrix.

[28] A police agent is one who acts on the direction of the police and who "goes into the field" to participate in the illegal transaction in some way. A confidential informant is a voluntary source of information who is often paid for that information but does not act at the direction of the police or go to places or do certain things at the direction of the police. The identity of informer is protected by confidential informant privilege and is not to be disclosed to the defence, subject only to the innocence at stake exception (see R. v. G.B. (2000), 146 C.C.C. (3d) 465 (Ont. C.A.) at para 10 and R. v. N.Y., 2012 ONCA 745 at para. 122). The privilege arises where a police officer "guarantees protection and confidentiality to a prospective informer in exchange for useful information that would otherwise be difficult or impossible to obtain" (see R. v. Basi, 2009 SCC 52, [2009] 3 S.C.R. 389 at para 36).

[29] As the Supreme Court of Canada observed in R. v. Broyles, [1991] 3 S.C.R. 595 at para. 26, the police will often make it known that they will pay for information and that does not necessarily make the person a police or state agent. That case dealt with a question of whether a jailhouse informant was a police agent and the Court stated as follows:

I would add that there may be circumstances in which the authorities encourage informers to elicit statements without there being a pre-existing relationship between the authorities and individual informers. For example, the authorities may provide an incentive for the elicitation of incriminating statements by making it known that they will pay for such information or that they will charge the informer with a less serious offence. The question in such cases will be the same: would the exchange between the informer and the accused have taken place but for the inducements of the authorities? (emphasis added)

Analysis

What Documents Were in the Possession of the Affiant and Relied Upon by Her in the Preparation of the ITO?

[30] As part of its argument for the disclosure of the requested documents, the applicants submit that it is difficult to determine who wrote appendix "D" which formed part of the ITO. It is the Crown's position that it was Constable Osborne was the sole author of appendix "D". It was the applicants' position that the ITO was confusing and arguably, based on a reading of the ITO, Constable McEachern had direct dealings with the claimed confidential informant and/or received notes from Constable Osborne concerning the confidential informant. The applicants argued that, relying on the principle that the affiant's dealings with the claimed informants are to be disclosed (McKenzie at para. 37), the handlers' notes ought to be produced.

[31] The Crown submitted that the applicants have received the full investigative file (subject to editing for confidential informant privilege) and that the applicants "had every document possessed by the affiant and the Crown (subject to editing)" (see the Crown's factum at para. 57).

[32] I fully accept that Crown counsel has made this submission in good faith. However, based on my reading of the ITO, it is not possible to say with any clarity what documents Constable McEachern had and were relied upon in her affidavit. This does mean that the applicants are entitled to disclosure of the documents they seek on this application. The lack of clarity in the ITO does not equate to success for the applicants on this application.

[33] The law is clear that the applicants are entitled to the materials which the affiant had and relied upon in preparing the ITO. I consider that there should be clarity around which documents were in the possession of the affiant Constable McEachern and relied upon by her in preparing the ITO. I note that in McKenzie, supra at paras. 10 and 55, Justice Campbell ordered that the Crown should disclose to the accused persons in that case "any and all notes the affiant made in relation to his conversation with the confidential informant in connection of the alleged criminal activities of the accused" and "copies of all of the documents that were expressly referred to and relied upon in the ITO". It seems to me that a modified order similar to this one is required in this case, namely that if Constable McEachern has notes of any discussions that she had directly with the confidential informant, they should be produced. I take it from Crown counsel's submissions that there are no such documents but nevertheless this position should be clarified. Secondly, as the ITO is unclear as to what documents Constable McEachern did have and which were relied upon in the drafting of the ITO, I hereby direct that the Crown should disclose copies of all documents that Constable McEachern had and were relied upon by her in preparing the ITO. As to precisely how this part of my order will be carried out, I will hear submissions from the parties. To be clear, it is my understanding, based on Crown counsel's submission, that the applicants already have all of the foregoing.

The Applicants' Request for Documents

Overview of the Issue

[34] The issue on this application is whether the applicants are entitled to obtain disclosure of the requested documents. This relates primarily to a request for the handlers' notes but extends to a request for investigative plans and records of payments to the claimed informant.

[35] In my view, the central issue on this application is whether the defence should receive the handlers' notes. I will determine this question before addressing the other requests for documents by the defence.

[36] I note at the outset that it was the principal argument of the applicants that the requested documents are to be produced under the "reasonable possibility" or reasonable likelihood" test and not because they were part of the investigative file per se. In oral argument, the prospect that the requested documents should to be viewed as part of the investigative file was put forward by the applicants.

[37] As indicated above, it is the applicants' position that the claimed confidential informant was in fact a police agent and that the affiant knew or ought to have known of this fact. The defence argues that the failure to disclose that the claimed informant was a police agent was a violation of the affiant's obligation to make full and frank disclosure on an ex parte application. The defence also argues that if the claimed informant is a police agent, then their identity must disclosed and they be subject to cross-examination.

[38] The Crown's position is that the requested documents are not part of the investigative file and that the request for documents is a fishing expedition that does not meet the "reasonable possibility" or "reasonable likelihood" test.

The Investigative File Question

[39] Dealing with the applicant's second argument namely that the requested documents should be viewed as part of the investigative file, it seems to me that this argument is based on the argument that Constable Osborne is the true affiant or a co-affiant of the ITO and that fairness requires that his notes be disclosed on this basis.

[40] It is true that Constable McEachern appears to have had very limited involvement in this case. The ITO relies almost entirely on what is known as Appendix "D" which appears to be information provided by Constable Osborne, the handler of the informant, concerning his dealings with the claimed confidential informant. Constable McEachern's only involvement appears to come on November 27, 2014 (the day before the warrant was requested and obtained) when she conducted some police computer inquiries on one of the applicants and received information from another police officer who confirmed that one of the applicants lived at the address apparently given by the claimed confidential informant.

[41] Nevertheless, there is nothing in evidence before me to suggest that there was anything improper about involving Constable McEachern to be the affiant in respect of the ITO and certainly the procedures for obtaining search warrants permit the procedure used in this case.

[42] On the authority of Ahmed and McKenzie, the requested documents would not normally be seen to be part of the investigative file and I am not going to order disclosure of the documents on the basis that they should be viewed as part of the investigative file.

[43] I recognize that if Constable Osborne had prepared the ITO, his notes of his dealings with the claimed informant would be considered to be part of the investigative file and be required to be disclosed to the defence, subject to editing. Because he is not the affiant, even though his notes would have informed the information he provided Constable McEachern, they are not required to be disclosed as part of the investigative file. At first blush, this may appear to be an odd distinction. However, it is in fact a fair line to draw based on a proper understanding of the scope of the investigative file.

[44] It is important to return to the law as outlined above on the scope of the investigative file. It is worth asking the question as to why the law has evolved such that the handler's notes are viewed as part of the investigative file when the affiant and the handler are one and the same (see McKenzie, supra at paras. 33 and 37)? In my view, the answer to that question must be that where the affiant is the handler, the balancing of the competing interests identified by Justice Campbell (i.e. the right of the accused to make full answer and defence; the necessity for practical and contextual limitations in the context of a Garofoli application; and the need to the protect the anonymity of the confidential informant) favours the production of the requested documents in redacted form. Further and importantly, disclosure is required in those cases because the affiant has placed direct reliance on his or her own notes in the preparation of the ITO.

[45] For the foregoing reasons, as there was apparently no direct reliance on the handler's notes by the affiant Constable McEachern, these documents will not be required to be disclosed on the investigative file basis.

The Request for Documents Under the Reasonable Possibility or Reasonable Likelihood Test

[46] As outlined above, even where documents fall outside the investigative file, a party requesting documents such as the applicants in this case may obtain the documents if they can meet the reasonable possibility or reasonable likelihood test. While the case law for leave to cross-examine an affiant on a Garofoli application requires that a "reasonable likelihood" test be met (see the passage from R. v. Pires; R. v. Lising, supra) the Superior Court disclosure of documents Garofoli cases by which I am bound equate the "reasonable possibility" test to the "reasonable likelihood" test (see for example McKenzie supra at para. 53 and Ahmed, supra at para. 31). Accordingly, in my view, the terms "reasonable possibility" and "reasonable likelihood" should be viewed as one and the same.

[47] In support of the reasonable possibility or reasonable likelihood test, the applicants submit that there are six circumstances which flow from the ITO which support the applicants' position that the requested documents are required to be disclosed. Those six points are as follows:

(1) The defence submits that the affiant acknowledges that the police cannot verify the criminal allegations of the informant. In this regard, the affiant states "due to the location and the method used by Gus Basios to traffic in narcotics police are unable to conduct static surveillance without running the risk of being detected and preventing the destruction of evidence." The defence submits that the police had no ability to obtain credible, compelling and confirmed informant information without further utilization of the informant. A pattern of purchases of drugs would be required to do this.

(2) The claimed informant then proceeded to act-or claimed to act-in precisely the way an undercover officer would traditionally have been used to make further purchases to develop grounds for a search warrant.

(3) The claimed informant was in regular contact with the police advising of his or her actions.

(4) The defence submits that Constable Osborne at least implicitly encouraged the claimed informant to use illegal means to continue to obtain information. There was no evidence that a caution "as required by law" was given by Constable Osborne to the claimed informant that information should not be gathered by means.

(5) The informant was providing information at the same time with regard to other people supposedly actively dealing in illegal drugs raising the question of why he or she would be buying as a mere user from multiple different dealers and how he or she was paying for such purchases.

(6) The claimed informant is said in the ITO to have been "utilized" by the police which the applicants submit involves a choice of words that points towards agency rather than informant status.

[48] For the reasons set out below, it is my view that the applicants have met the reasonable possibility or reasonable likelihood test for the disclosure of the handler's notes subject to claims of blanket privilege or editing to protect privilege. The applicants submitted that they did not intend to foreclose the Crown from claiming blanket privilege and I leave open this possibility. Given that there has already been the disclosure of a redacted Appendix "D", my preliminary thinking (without deciding the point) is that some form of redacted handler's notes could be disclosed but given the submission of the applicants on blanket privilege, I will leave open the possibility of an argument on blanket privilege.

[49] I do not adopt the precise characterization, nature and scope of the six points made by the applicants in support of the reasonable possibility or reasonable likelihood test and I will set out my own reasons for the conclusion I have reached. By way of example only on the applicants' six points, I disagree that the police were necessarily required to provide a caution to the claimed informant not to act illegally (point 4). The defence points to R. v. Wiley, [1993] 3 S.C.R. 263 at para. 25 in support of this proposition but I disagree that the Supreme Court said it was required in that case. That was not the issue in that case.

[50] In this case, the applicants allege that the claimed confidential informant was actually a police agent. The applicants claim that this fact would have been known or ought to been known, to either Constable McEachern or Constable Osborne and that the failure to disclose it was either deliberate or, presumably, negligent (in that they "ought to have known"). In either case, the applicants submit that it gave rise to a material nondisclosure in the ITO.

[51] For its part, the Crown submits that the defence's claim that the confidential informant was in fact a police agent is speculative and without merit. The Crown points out that the informant is referred to multiple times in the ITO as a confidential informant and that the informant provided information with the understanding that his or her identity would be protected.

[52] I make the observation that even if the claimed informant was a police agent that does not necessarily mean that there was a failure to make full and frank disclosure on the application for the search warrant. As indicated above, the question of whether a person is a confidential informant or police agent is a question of law. Constable McEachern or Constable Osborne might have thought that the claimed informant was a confidential informant when, as a matter of law, he or she was a police agent. One would then have to consider whether Constable McEachern or Constable Osborne ought to have known that the person was a police agent and whether that nondisclosure in that context amounted to a breach of the obligation to make full and frank disclosure. I need not decide this point at this stage.

[53] I note as well that the police and the Crown may say that a person was a confidential informant but that does not necessarily make it so. The fact that the police thought the informant was a confidential informant will be a relevant fact to be considered if and when the Court is called upon to make a determination in this regard but it will not be determinative.

[54] Suffice it to say that if the claimed informant was a police agent as a matter of law and Constable McEachern or Constable Osborne knew or ought to have known of this fact, it could amount to a material nondisclosure on the application for the warrant which could affect the central question on the Garofoli application namely whether there was any basis upon which the issuing Justice could have properly authorized the warrant.

[55] I do consider that on the face of the redacted ITO before me, reasonable questions arise which support the argument that the claimed informant may have been a police agent. Whether the claimed informant was or was not a police agent does not have to be decided or proved at this stage and I expressly do not decide it. Nor do the applicants have to prove that the requested documents will establish that the claimed informant was a police agent. They need only establish that there is a reasonable likelihood or a reasonable possibility that the disclosure of the documents requested will assist the court in relation to a material issue on the Garofoli application.

[56] In my view, the reasonable possibility or reasonable likelihood test is met by reason of a consideration of the following factors:

(i) In this case, on the face of the ITO, the police had no way of verifying the alleged criminal activity of the applicants. Surveillance was not an option. Accordingly, the information from the claimed confidential informant was particularly important in this case;

(ii) It also clear to this Court that mere information from a confidential informant that they had purchased drugs from one of the applicants in the past would not be sufficient to obtain the warrant. Some current evidence of ongoing sales of illegal drugs would be required, among other things;

(iii) The ITO says that "the CI has been utilized as an informant [for over 6 months]". While the applicants place special emphasis on the use of the word "utilized", I do not. I simply consider that the fact of an ongoing relationship, in the context of the other information provided in the ITO, is important;

(iv) The ITO indicates that the "CI understands that before [consideration] is provided an arrest and seizure must be made" and "it is understood that they gain nothing if arrests or seizures are not made";

(v) Five separate meetings occur between Constable Osborne and the claimed confidential informant in 2014 and in three of those meetings, the claimed confidential informant indicates that he has bought drugs from one of the applicants; and

(vi) The ITO indicates that the "C.I. has provided information pertaining to several parties actively dealing drugs which have (sic) police have been able to corroborate and are actively pursuing investigations".

[57] In my view, the foregoing factors taken together suggest that the claimed informant may not have been simply buying drugs on his own but rather may have been acting at the implicit direction of the police for money or other consideration. As Justice Iacobucci set out in Broyles, the question is "would the exchange between the informer and the accused have taken place but for the inducement of authorities". Without deciding the point at this stage, the purchases may have taken place anyway as the claimed informant was allegedly and apparently already buying from the applicant Gus Basios and might have continued to do so anyway. On the other hand, on these facts in the redacted ITO, it may be that the purchases may not have taken place without some implicit direction from police. This is not a case where police were paying for past information and they then proceeded to do their own investigation and obtained their own direct evidence of criminal activity. To move the investigation forward, the police needed information about new or ongoing purchases or some other evidence. The fact that the claimed informant continued to come up with purchases from one of the applicants over a period of time; is involved in other current police drug investigations; and knows there will be consideration in it for him or her if there are arrests raises the reasonable possibility that he or she may have been given implicit direction by the police and taken on the role of a police agent rather than a confidential informant. I repeat and emphasize that I have made no conclusion in this regard. I am simply observing that these are legitimate questions raised by the applicants that arise on the face of the redacted ITO and that the applicants have met the "relatively modest onus" on them for disclosure of the handler's notes.

[58] I recognize that the affiant of an ITO does not have to directly consult informers or review informer handler notes or otherwise investigate information communicated to them by other officers unless there is some evidence that should have put them on notice (see World Bank Group, supra at para. 141). I am not casting aspersions on the affiant Constable McEachern or Constable Osborne. I am simply of the view that there is a reasonable possibility or reasonable likelihood that the requested documents will be probative, or be capable of being probative, of the police agent/confidential informant issue raised by the applicants and what Constable McEachern or Constable Osborne knew or ought to have known about this issue and will therefore be probative, or be capable of being probative, of the full and frank disclosure point, which is relevant or could be relevant on the Garofoli application.

[59] In my view, the information on the face of the ITO has some similarities to the facts of Bernath where Justice Ballance found that the reasonable possibility test was met and ordered disclosure of the handlers' notes. That case also involved allegations of police agency rather than confidential informant status. The applicants in that case pointed to information on the face to the ITO which provided some support for the police agency argument.

[60] The applicants have also requested investigative plans and records of payments to the claimed informant. I am of the view that they should not have any investigative plans for a number or reasons. First, there is no clear evidence that any such plan exists and that suggests to me that this request is more of a fishing expedition than a legitimate request. Second, if such plans exist, any plan would clearly fall outside of the investigative file. Third and more importantly, I am not satisfied that such documents meet the reasonable possibility/likely test and advance the question of law as to whether or not the claimed informant was a police agent or confidential informant and whether Constable McEachern or Constable Osborne knew or ought to have known of this alleged status. Fourth, I also consider that the balancing of the interests identified by Justice Campbell in McKenzie apply even under the reasonable possibility/likelihood test, and balancing those interests points against disclosure of any investigative plans as being too far afield the issues to be decided on the Garofoli application. Fifth, I note that the Court in Bernath was also asked to order the disclosure of operational plans and handlers' notes and the Court ordered the notes but not the operational plans without expressly discussing the point (see Bernath, supra at paras. 7, 80 and 82).

[61] As to the applicants' request for information on the payments provided to the claimed informant, I understood this to be limited to a request for documents relating strictly to this investigation. Having said that, the focus of the argument on the application did not fully address the payment document request. The focus was, as I understood the argument, on the handler's notes and the investigation plan. Accordingly, I am going to hear further from the parties as to the applicants' request for documents about the payments made to the claimed confidential informant.

Summary

[62] For the reasons outlined above, the Crown should disclose (subject to editing) copies of all documents that Constable McEachern had and were relied upon by her in preparing the ITO. As to precisely how this part of my order will be carried out, I will hear submissions from the parties. It is my understanding, based on the Crown's submissions, that the applicants already have any such documents but clarity is required on this point.

[63] The Crown should also disclose the handler's notes, namely Constable Osborne's notes of his dealings with the claimed confidential informant in connection with the applicants, subject to claims of blanket confidential informant privilege or editing for the claimed confidential informant status. The applicants submitted that they did not intend to foreclose the Crown from claiming blanket privilege and I leave open this possibility. As I said above, given that there has already been the disclosure of a redacted Appendix "D", my preliminary thinking (without deciding the point) is that some form of redacted handler's notes could be disclosed but given the submission of the applicants on blanket privilege and the application proceeding on that basis, I will leave open the possibility of an argument on blanket privilege.

[64] The Crown is not required to disclose any investigative plans.

[65] I will hear further submissions from the parties on the applicants' request for documents outlining payment details to the claimed confidential informant.

Date: January 13, 2017

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Justice Paul F. Monahan