Court Information

Ontario Court of Justice

Date: 2020-03-12

Court File No.: Brampton 3111 998 19 39570

Parties

Between:

Her Majesty the Queen

— AND —

Troy Moulton

Judicial Officer and Counsel

Before: Justice G.P. Renwick

Heard on: 10 March 2020

Reasons Released on: 12 March 2020

Counsel:

• J. Campitelli (P.P.S.C.) and T. Powell (A.G.O.) — counsel for the Prosecution
• R. Rusonik — counsel for the Defendant Applicant Troy Moulton

Ruling on a Disclosure Application in Aid of a Garofoli Challenge

RENWICK J.:

Facts and Background

[1] The Applicant was charged with Possession of a Schedule I Substance (fentanyl) for the Purpose of Trafficking and Possession of a Loaded Firearm following the execution of a search warrant at an address associated to him. Prior to trial, the Applicant has brought several Applications to further a challenge to the issuance of the search warrant.

[2] The prosecution intends to rely upon portions of the Information to Obtain a search warrant ("ITO") that have been redacted prior to disclosure to the Applicant to protect the identity of a confidential informant ("CI"). This is known as the Garofoli "step 6" procedure.

[3] The Applicant also challenges the existence of a C.I. It asserts that the police directed the activities of an agent, to which the status of a C.I. cannot apply. The parties agree that we are headed toward a hearing to determine whether or not the C.I. privilege applies in this case.

[4] In order to challenge the existence of the privilege claimed and to mount a sub-facial attack of the issuance of the search warrant, in its written materials, the Applicant has sought disclosure of the following items:

i. Any and all documents laying out or reporting an investigative plan to try to obtain the search warrant; that is, what the police sought permission from their superiors to do to try to come-up with an Information to Obtain a search warrant; and

ii. The documents required to be maintained in relation to claimed informants by a Peel Regional Police Officer by the Peel Regional Police Directive relating to police informants and agents, namely:

a. A detailed record of each contact with the claimed informant – handler's notes or 'Contact/Debriefing Reports', as they are 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.

[5] During oral submissions, the Applicant also sought disclosure of:

d. The Peel Regional Police Directive regarding Confidential Informants and Agents;

e. "Ledger" notes (also known as handler notes) as they relate to the individual's entire history with Peel Regional Police; and

f. Contact/Debrief Reports generated in relation to the claimed informant's entire history with Peel Regional Police.

[6] During submissions, counsel for the Applicant indicated that remuneration documentation (items b. and c.) could be addressed at a later time.

[7] The prosecution submits that the items requested are outside of the investigative file, they were not relied upon by the affiant, and they are not disclosable unless the Mackenzie test for disclosure is satisfied.

[8] The parties accept that disclosure is governed by a modest showing of a "reasonable possibility" that the requested materials will be of assistance to an applicant on a Garofoli application. However, the parties do not agree on whether that threshold has been met in this case.

Evidence

[9] In its materials and during submissions, the Applicant alerted the court of its intention to call three witnesses to establish that the person they believe is the purported C.I. acted in the role of a police agent or agent provocateur: the Applicant, J.A., and S.D. The parties agreed that it would be appropriate to enter into an in camera hearing to receive the proposed evidence.

[10] Before the start of the in camera hearing I made the following Order:

We are about to enter into an in camera proceeding to protect the identity of an individual for whom confidential informant status is claimed. I am excluding the public pursuant to my authority to craft procedures to protect the identity of a purported confidential informant, on the assumption that the person may be a confidential informant. No transcript shall be prepared for this proceeding, except by Order of a judge. The public will be prohibited from attending this proceeding.

[11] At the start of the in camera proceeding I required the individual members of the court staff to solemnly declare that they would not reveal the name of any person who may be a confidential informant (unless compelled to do so by Order of a court).

[12] The Applicant testified to how he came into possession of the firearm and ammunition. He testified how he knew the person I will refer to as "Y.Z." In summary, the Applicant testified that the day before the police searched the apartment, a friend of Y.Z. came to purchase more drugs from the Applicant on Y.Z.'s behalf. The Applicant was reluctant to sell Y.Z. more drugs because Y.Z. already owed him money for a prior purchase. The friend of Y.Z. offered the Applicant a firearm, ammunition, and a firearm cleaning kit as collateral for the monies owed and the purchase of more drugs. The Applicant agreed and took those items and provided drugs to Y.Z., through the friend, "on consignment." The Applicant was expecting to be paid by Y.Z. within 24 hours. The following night, his apartment was "raided" by police.

[13] The Applicant was cross-examined about the details of his testimony: how long he had been a drug dealer; how dangerous that was; whether he had possessed a weapon for protection; where he lived and his bail conditions in another prosecution; why he had separated the cleaning kit from the weapon with which it was collateral; who stored drugs in which parts of the apartment; who could have moved the ammunition; why he did not want to buy a gun; why he accepted the gun; why was he willing to deal a second time with someone who had not come to see him, as promised, and had not paid him for his last drug purchase; why he threw the gun out of the window when he heard a bang at the door; what he first thought when he heard a bang at the door; and was the gun his.

[14] I have several reservations about the Applicant's testimony, however, it matters not. I need not resolve, at this stage, how credible or reliable his testimony was because I am not presently required to determine whether Y.Z. was acting as a C.I. or an agent.

Discussion

[15] At this stage, I only have to determine whether there is a reasonable possibility that the items sought for disclosure would assist the Applicant during the Garofoli Application(s).

[16] I find that there is a reasonable possibility that some of the documentation sought is relevant to the determination of the claim of informer privilege for the following reasons:

i. The same two police officers are involved as the handlers of the C.I. in all four cases where it is believed that Y.Z. was involved;

ii. In obtaining search warrants for the investigations involving the Applicant, J.A., and S.D., it appears that the affiant relied heavily upon a C.I., without much first-hand knowledge of the investigation; and

iii. The parties agree that the court must determine the validity of the claim of C.I. privilege by hearing evidence and submissions during an in camera hearing from which the Applicant will be excluded.

[17] It is also worth noting several points (in no particular order).

[18] First, the Applicant has not suggested any other use to which the materials sought could be put (for example, to seek leave to cross-examine the affiant, to undermine the statutory prerequisites for the granting of the warrant, etc.), besides the determination of the validity of the claim of C.I. privilege.

[19] Second, I do not accept the rationale suggested by the Applicant that it is necessary to hear from J.A. and S.D. because their evidence will establish that Y.Z. is likely an agent in this case, because he is an agent for the police in other cases. At this point, it is unknown whether Y.Z. is the person for whom C.I. privilege has been claimed. Also, the fact that someone is an agent in one investigation does not necessarily undermine the claim that the person is not an agent in another investigation. The claim of privilege must be established on a balance of probabilities. It is not a given that the privilege claimed will be found to exist. Now that the court is aware of the possibility that the purported C.I. may have acted as an agent, this can be fully explored during the hearing to establish the privilege.

[20] Third, the prosecution has an obligation to maintain the status of a C.I. However, the prosecution has other obligations if it discovers that the police have mischaracterized a police agent as a C.I.: The prosecution must pierce the privilege, reveal the agent's identity, and make disclosure of all relevant materials relating to the individual's agency.

[21] Fourth, given the exclusion of the Applicant from the privilege validation hearing, the prosecution has an enhanced duty as a quasi-minister of justice to become fully informed of the background of the putative C.I. in order to properly seek to uphold the privilege claimed and to avoid unwittingly supporting a false or erroneous privilege claim.

[22] Fifth, the Applicant is incorrect that the Garofoli process (steps 1-4) is initiated for the disclosure of these additional materials. The Applicant has sought and will receive documentation which not only formed no part in the ITO materials that were reviewed by the issuing justice, they were not likely viewed and were not relied upon by the affiant of the ITO. The prosecution is required to redact the materials pursuant to its obligation to protect the purported C.I. and nothing more.

[23] Sixth, not all materials relating to the use of an informant is properly the subject of disclosure, even to a reviewing court.

[24] Lastly, it is not a given that Y.Z. is a C.I., but if Y.Z. is a C.I., despite the Applicant's belief that Y.Z. has acted as a police agent, the prosecution and the court are duty bound to protect Y.Z.'s status as a C.I. until such time as a court determines otherwise. Given the breadth of the materials sought (all notes, ledger entries, and reports respecting the C.I. for their entire history with the Peel Regional Police), even if properly redacted, with the quantity of information, the size and placement of redactions, and the collection of documents relating to different investigations, the materials may compromise the identity of the C.I. or narrow the pool of potential informants.

[25] I remind myself that courts (and prosecutors) must be cautious not to overestimate their ability to properly redact C.I. information, especially where multiple investigations are involved:

In Leipert, the Supreme Court of Canada affirmed the decision of McEachern C.J.B.C. who stated at para. 35:

Lastly, in my opinion, judges should be exceedingly cautious about ordering the production of even a carefully edited tip sheet or report for which informant privilege is claimed. Judges should recognize that any confidence they may have about their ability to edit out information that might disclose the identity of an informant is probably misplaced, and possibly dangerously so. The court cannot step into the shoes of the accused and decide, on the basis of his knowledge, that an informant will not be identified. I need only mention that the accused may know that only some very small circle of persons, perhaps only one, may know an apparently innocuous fact that is mentioned in the document. The privilege is a hallowed one, and it should be respected scrupulously.

Other courts have recognized that even the smallest details may provide an accused person with all he or she needs to identify the informer: see R. v. Garofoli (1990), 60 C.C.C. (3d) 161 at 194 (S.C.C.); R. v. Parmar (1987), 34 C.C.C. (3d) 260 at 281 (Ont. H.C.J.). In Leipert, supra, McLachlin J. quoted a portion of the passage from McEachern C.J.B.C.'s reasons quoted above and observed at para. 16 that "[a] detail as innocuous as the time of the telephone call may be sufficient to permit identification. In such circumstances, courts must exercise great care not to unwittingly deprive informers of the privilege which the law accords to them."

[26] Without hearing the evidence from J.A. and S.D., I am satisfied that there is a reasonable possibility that the following documents could be useful to the Applicant to undermine the claim of C.I. privilege relied upon by the affiant to the ITO:

i. Any and all documents laying out or reporting an investigative plan to try to obtain the search warrant; that is, what the police sought permission from their superiors to do to try to come-up with an Information to Obtain a search warrant; and

ii. The documents required to be maintained in relation to claimed informants by a Peel Regional Police Officer by the Peel Regional Police Directive relating to police informants and agents, namely:

a. A detailed record of each contact with the claimed informant – handler's notes or 'Contact/Debriefing Reports', as they are referred to in the Directive; including "Ledger" notes (also known as handler notes) as they relate to the claimed informant's involvement with Peel Regional Police in this investigation; and

iii. The Peel Regional Police Directive regarding Confidential Informants and Agents.

[27] For the reasons given in paragraphs 18-24, above, I am not satisfied that there is a reasonable possibility that the handler's notes, or Contact/Debriefing Reports for the entire history of any relationship between the person who is claimed to be a C.I. and the Peel Regional Police will assist the Applicant in undermining the claim of privilege.

[28] The Applicant is entitled to suggest questions that may be asked of the witnesses called to testify during the privilege hearing and to be made aware of the evidence received, submissions made, and reasons given to the extent that they do not undermine a C.I. privilege properly found to exist, but unqualified disclosure of every document that could be used to question the witnesses is neither required nor necessary to fulfill the stated purpose.

Conclusion

[29] The prosecution has until 5:00 p.m. on Friday 03 April to make disclosure (in redacted form) to the Applicant of the documentation referred to in paragraph 26, above.

Released: 12 March 2020

Justice G. Paul Renwick