Court File and Parties
ONTARIO COURT OF JUSTICE DATE: 2021 02 28 COURT FILE No.: Brampton 3111 998 19 39570
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
TROY MOULTON
Before: Justice G.P. Renwick
Heard on: 23 February 2021 Reasons Released on: 28 February 2021
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
Endorsement on Garofoli Leave to Cross-Examine Application
RENWICK J.:
[1] The Defendant/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 undermine the grounds contained within the Information to Obtain (“ITO”) the search warrant.
[2] The Applicant’s main challenge to the search warrant is that the confidential informant (“CI”) relied upon by the affiant was actually an agent acting at the behest of the police. [2] If this is accurate, no claim of privilege would attach to the information provided to the affiant and identifiers of the person. Moreover, the Applicant would be in a position to seek to have the search warrant set aside, pursuant to the principles in R. v. Paryniuk. [3]
[3] On 10 March 2020, the parties agreed that the prosecution could attempt to prove the existence of a CI in a Basi hearing. [4] The very next day, a global pandemic was declared by the World Health Organization. [5] Shortly after that, the regular sittings of this court were suspended until 06 July 2020.
[4] After intervening court appearances, when the matter was simply adjourned until the Garofoli application could resume, the matter returned to court on 04 December 2020. On that date, the prosecutor submitted that the matter should proceed to a Basi hearing to determine the claim of privilege.
[5] The Applicant did not specifically resist that suggestion but continued to seek disclosure and characterized a pending application to cross-examine one of the handlers of the CI (a sub-affiant to the ITO for the search warrant at issue) as a disclosure application. After some further disclosure and judicial summaries were prepared in open court, the matter was adjourned.
[6] On the return of the matter, 23 February 2021, the Applicant brought an Application to seek leave to cross-examine “N.” [6] Save for one area, the prosecution resisted the Application. The prosecution has agreed that the officer could be cross-examined on his observations of the Applicant on the day before the search warrant was granted.
[7] Despite that I have received written submissions, heard the arguments on the Application seeking leave to cross-examine Officer N., and the prosecutor has consented to make the officer available for a limited cross-examination on the specified area, I have come to the conclusion that a ruling on the Application seeking leave to cross-examine a sub-affiant to the ITO is premature.
[8] For the following reasons, I am not prepared to give my decision on the Application seeking leave to cross-examine a sub-affiant at this time:
i. The entire force of the Applicant’s challenge to the search warrant is that the police have mischaracterized their activities, hidden their use of an agent, and subverted the judicial pre-authorization process. At the root of this challenge lies a determination of whether the putative CI was acting as an agent or in concert with an agent of the police. If this were the case, the informant privilege claim would fall [7] and full disclosure would likely follow;
ii. The police, the prosecution, the court are all duty-bound to attempt to protect the claim of privilege until it is established or found to be inappropriate; [8]
iii. As the status of the putative CI has been placed directly in issue (is the person a material witness or agent), this must be determined before the court can decide the Application seeking leave to cross-examine Officer N., and the full scope of that inquiry; [9]
iv. The Applicant is not opposed to permitting the court to conduct a Basi inquiry;
v. The Applicant is content to have the court receive disclosure in its absence; [10] and
vi. Officer N. is currently on a medical leave of absence with an indeterminate return date, whereas possible participants at a Basi hearing are likely available to testify immediately (the putative informant, the co-handler – Officer Lorette, and/or others with first-hand knowledge of police dealings with the informant).
[8] In determining that a Basi hearing is necessary, the following must also be borne in mind:
i. The court must accommodate the open court principle to as great an extent as possible without risking a breach of the claimed CI privilege. This rule is meant to protect informer privilege absolutely while minimally impairing the open court principle; [11]
ii. No parties other than the prosecution and the putative CI have standing to appear, call witnesses, [12] and make submissions during the in camera proceeding; [13]
iii. The Defendant has a right to make submissions about what should occur during its absence from the in camera hearing, suggest questions to be asked during the in camera hearing, a right to receive a summary of the evidence and submissions made during the in camera hearing, and a right to be heard following the in camera hearing on the applicability of any privilege found to exist; and
iv. The in camera hearing is governed by the process outlined by the Supreme Court of Canada. [14]
Next Steps
[9] The Defendant is entitled to make submissions about what should occur during the in camera proceeding in addition to suggesting questions that may be asked of the witnesses called to testify. As the parties have been speaking about this since 10 March 2020, subject to a request for more time, the court expects to receive these submissions by 08 March 2021.
[10] The prosecution can respond to the Defendant’s submissions during the in camera hearing and the court will determine at the conclusion of the in camera hearing the nature and extent of disclosure about the process and content of the in camera hearing. If the CI privilege is maintained, the parties can make further submissions respecting the continuation of the Garofoli Application and the need for a ruling on the Application for leave to cross-examine a sub-affiant.
[11] The court is directing the prosecution to arrange an in camera hearing with the Trial Coordinator, without notice to the Defendant. This hearing may take place remotely on a sealed record. This hearing must occur as soon as practicable, bearing in mind the non-adversarial nature of this process and the unlikelihood that both prosecutors are required to attend.
Conclusion
[12] The ruling on the Application to cross-examine a sub-affiant is deferred until the completion of a Basi hearing, to be held in camera, to determine the existence of a confidential informer.
[13] Upon the matter returning to court (10 March 2021) the parties may adjourn the proceedings as necessary to determine the outcome of the Basi hearing and to set a continuation date with an appropriate period of time to complete this trial.
Released: 28 February 2021 Justice G. Paul Renwick
Footnotes
[1] See R. v. Garofoli, [1990] S.C.J. No. 115 for applications to quash judicially authorized searches.
[2] After approximately one year of these proceedings, this challenge has recently morphed into a suggestion that the CI is a “straw CI” and the police have relied upon an undisclosed agent and a CI in the ITO.
[3] 2017 ONCA 87.
[5] See: 11 March 2020 Media Announcement by World Health Organization.
[6] The materials have not identified the officer’s rank or first name.
[7] Neither a material witness nor an agent of the police can be a confidential informer: see R. v. Davies, [1982] O.J. No. 146 (C.A.).
[8] Named Person v. Vancouver Sun, 2007 SCC 43 at paras. 17, 19, 20, 21, and 43.
[9] This should not be taken to mean that the court has come to any conclusions on the Application.
[10] Part of this Application includes: In support of this application to cross-examine Officer N., the Applicant has asked the Crown to put before Your Honour in camera the answer to the question of who was the handler and instigator of the investigation of the Information to Obtain in the case of the Information to Obtain against Mr. Downey-Smith and who was the instigator of the Information to Obtain in the first Ansah investigation. This will allow the Applicant to make submissions in open court and Your Honour will know if they are supported by fact: see Supplement to the Notice of the Applicant’s Application to Cross-Examine Sub-Affiant N. at p. 5.
[11] Named Person, supra, at para. 55.
[12] Basi, supra, at para. 44.
[13] Named Person, supra, at paras. 47, 49, and Basi, supra, at paras. 44 and 53.
[14] Named Person, supra, at paras. 47, 49, 51, 55, and 65 and Basi, supra, at paras. 44, 53, 55, 56, and 58.