Ontario Court of Justice

Date: April 16, 2018 Central West Region Brampton, Ontario

Between:

HER MAJESTY THE QUEEN

-and-

X.Y.

Reasons for Ruling

Duncan J.

Application

[1] The defendant/applicant is charged with serious drug offences. In advance of his pending trial he has brought an application seeking a stay of proceedings or exclusion of evidence based on the contention that the police treatment of him as a confidential informant constituted an abuse of process. He argues two main points:

• That the police broke their promise to provide consideration in exchange for information.
• That the police failed to keep a proper record of their interaction with the defendant.

Background

[2] Following his arrest, the defendant was released from the police station on a promise to appear, a generous form of release for serious reverse onus offences. The officer in charge, Cst. Z, told the defendant in effect that if he helped them, they might be able to help him. He was given Z's number to call if interested.

[3] A few days later the defendant called Z and a meeting was arranged. At the meeting Z explained how it worked – that if the defendant provided helpful information Z would convey that up the chain of command and a recommendation would be made to the Crown as to what benefit the police thought was deserved. He made it clear that because the decision was not theirs to make, the police could offer no guarantee. The defendant was uncertain what to do and ended the meeting.

[4] A few hours later he called Z and they met again. The defendant gave some information while Z took notes on a piece of paper. When the defendant was finished, Z told him that his information was too vague and not helpful; he could not use it and would not be putting it forward for consideration of benefit. The defendant, who at the first meeting had been wary and suspicious of being recorded, requested the notes that Z had made. Z gave them to the defendant who soon thereafter destroyed them. Neither Z nor the other officer with him made any further note.

[5] The defendant's charges moved through the system in the usual way. When he informed his counsel of the events described above, counsel brought it to the attention of senior Crown counsel. Ultimately, some 18 months after the event, Z was asked by the Crown to prepare a will-state as to what occurred. A few months later the defendant produced an affidavit. The two versions differed in the amount of detail said to be given by the defendant, his version being more detailed than that recalled by Z. [1] However, both versions described illegal activity, not in Peel, but in another jurisdiction. The defendant said that when that fact emerged Z immediately lost interest and ended their meeting. Z maintained that this factor did not and would not move him to dismiss otherwise useful information.

Findings of Fact

[6] Due to the absence of any notes, the passage of time and Z's concession that more might have been said then he could recall months later, it is difficult to give much weight to Z's evidence re the specifics of the information received. The defendant had an advantage with respect to recollection in that he was not confined to remembering a distant conversation. Instead he could reference what he knew then and now about the person and the operation he was describing. To be sure he may not have given all of the information that he had – he could have been gaming Z, trying to gain a benefit without giving away too much. But had he been holding back, I think he would have later made efforts to provide additional information [2]. On balance I accept that the defendant's version of the exchange is likely more accurate.

[7] I accept that on hearing what the defendant had to say, Z formed and expressed a genuine belief that the information was not useful. It would make no sense for him to go to the trouble of reaching out to the defendant and meeting with him twice to then reject the information as not useful if he actually thought otherwise.

Did the Police Break Their Promise?

[8] The scope of judicial review available to answer this question is very limited. The decision whether to prosecute and for what charge(s) is solely a matter within the discretion of the Crown: R. v. Nixon, 2011 SCC 34, [2011] S.C.J. No. 34 at para 21 quoting Krieger v. Alberta Law Society, 2002 SCC 65, [2002] 3 SCR 372 para 46. I think it is obvious that the evaluation of CI information and determination of its worth as it bears on the decision to prosecute (and for what charge) is part and parcel of this core Crown discretion. As such, its exercise is only subject to review for abuse of process: Nixon para 31. Otherwise review is "beyond the reach of the court": Krieger para 32.

[9] Further, a court cannot even enter into an inquiry unless and until an applicant has overcome a threshold of establishing an arguable case of abuse of process: Nixon para 62.

Quite apart from any such pragmatic considerations, there is good reason to impose a threshold burden on the applicant who alleges that an act of prosecutorial discretion constitutes an abuse of process. Given that such decisions are generally beyond the reach of the court, it is not sufficient to launch an inquiry for an applicant to make a bare allegation of abuse of process. For example, it would not suffice for an applicant to allege abuse of process based on the fact that the Crown decided to pursue the charges against him but withdrew similar charges against a co-accused. Without more, there would be no basis for the court to look behind the exercise of prosecutorial discretion.

[10] In this case, the threshold issue was not raised or argued before me. An inquiry was held, and I have made findings of fact. The applicant has in effect received a free pass to second base. It is unnecessary for me decide whether he would have made it there safely if the threshold issue had been litigated. It should not be thought however that future would-be applicants are entitled to a hearing simply by filing an application alleging abuse of process.

[11] The only issue then is whether the applicant has satisfied the ultimate burden of establishing abuse of process. That doctrine identifies two categories – the "main" category being where state conduct compromises the fairness of the trial and the "residual" category where state conduct risks undermining the integrity of the judicial process: R. v. O'Connor, [1995] 4 SCR 411 para 68.

[12] The applicant relies on the residual category. He contends that permitting the police to break the central term of the CI/handler contract would create CI chill, a development that would be highly detrimental to law enforcement and undermine the integrity of the justice system as a whole – and hence an abuse of process.

[13] But abuse of process is reserved for the clearest of cases [3]. Cases of abuse of process based on allegations of police/Crown misconduct invariably fail unless the court finds improper motive, bad faith, flagrant impropriety, egregious behavior or similar aggravating circumstances. [4] The defendant, who bears the burden, has not satisfied me that such aggravating circumstances exist in this case. To the contrary, for the reasons given above, I accept that on hearing what the defendant had to say, Z formed and expressed a genuine belief that the information was not useful. I think that finding negates any conclusion of abuse of process.

[14] A few final points: First, it should be apparent that my finding of Z's bona fides is not dependent on acceptance of his version of the exchange with the defendant. As per findings above, I have preferred the defendant's account. But even that version could be considered, upon an assessment made in good faith, to contain no more than mediocre information.

[15] Which brings up the second point. The applicant contends that he provided useful information which was discarded by Z solely because it related to crime outside of Peel. I think that "solely" puts it too high – but I also think that it was a factor. However, it seems to me that the point is not entirely irrelevant, and it would not be improper for a police officer to take it into consideration. It would be reasonable for an evaluation of CI information to take into account that any practical use that could be made of it would depend on the likelihood (probably zero) that his force would be prepared to expend its resources investigating crime in another jurisdiction. Similarly, it would not be unreasonable to set a somewhat higher standard for information that would have to be conveyed to another force. In my view it would not be indicative of a lack of good faith if Z gave some consideration and weight to the jurisdictional point in his assessment of the value of the information received.

[16] Finally, it should be emphasized that I am not saying that Z's assessment was right – only that it was not dishonest or disingenuous or deserving of any of the other adjectives that are sometimes used. But this is a review for abuse, not correctness. If it were otherwise, the core principle of non-reviewability of the exercise of Crown discretion except in cases of proven abuse, would be nullified.

[17] In summary, the applicant has not established an abuse of process. Intervention is beyond the Court's reach at this stage. [5] It must be accepted that the condition was not fulfilled, no reciprocating police obligation arose, and no promise was broken.

Failure to Follow CI Procedures and Protocols and Keep Proper Records of Interactions with the Defendant

[18] The applicant emphasizes that Z did not follow the procedures, protocols and directives established by PRP with respect to handling of CIs, including rules with respect to notifying senior officers, and keeping notes and logs of all interactions.

[19] It seems to me that the scenario that took place in this case was a step preliminary to establishment of the full relationship to which those procedures speak. While it was properly regarded as confidential (honoured as such by the police) and in that sense a CI/handler relationship had been established, it was no more than an initial proffer of information by the defendant. Such situations must occur hundreds of times a week in an urban police force. Every police officer is interested in getting information from anyone and many of those arrested or in trouble are willing and anxious to give it. I cannot think that all of the initial exploratory interactions and conversations that must occur screening the wheat from the obvious chaff come within, and must adhere to, the full set of procedures set out in the directives. There must be recognition of and allowance for an initial screening.

[20] Much was made by the applicant about the failure of Z to make and retain notes of the conversation. However, given the defendant's specific request for the notes and his paranoia about other recordings being made, coupled with Z's interest in maintaining the defendant's trust, it was not improper in the circumstances of this case for Z to not make any further note. In any event if it was wrong, it was not abusive. To the contrary it demonstrated good faith and respect for the defendant's concerns. It also tends to support the bona fides of Z's belief that the information provided was not useful. Finally, if prejudice resulted, I think it was to Z in that he had no notes to rely upon to enhance his limited memory of the details, putting him at a disadvantage as against the defendant, as discussed above.

Conclusion

[21] The applicant has not established an abuse of process (or section 7 violation). It is unnecessary to consider the question of remedy. The application is dismissed.

April 16, 2018

B. Duncan J.

S. Aujla and E. Taggart for the Crown

M. Lacy for the defendant/applicant

Footnotes

[1] The details of each version are not included here because they may tend to identify the informant.

[2] There was evidence that he called Z again some considerable time later but they never re-connected.

[3] R. v. Babos, 2014 SCC 16, [2014] 1 SCR 309.

[4] Krieger para 49; R. v. Nixon para 68; See also R. v. D, 57 CCC 3d 151 (OCA); R. v. MacDonald, 54 CCC 3d 97 (OCA).

[5] If this case comes to sentencing, different considerations apply: R. v. CNH, [2002] OJ No 4918 (CA).