WARNING The court hearing this matter directs that the following notice be attached to the file:
This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:
IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.
IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.
NO SUBSEQUENT DISCLOSURE — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.
Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:
- OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .
( a ) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or
( b ) is guilty of an offence punishable on summary conviction.
DATE: January 11, 2023 COURT FILE No: 21-Y075
O N T A R I O C O U R T OF J U S T I C E
B E T W E E N :
HIS MAJESTY THE KING
-AND-
J.A.
Before Justice M. G. March
Heard on October 11, 2022
Reasons for Decision on the Application for Disclosure released on January 11, 2023
Counsel: Mr. Timothy McCann……………...……………………….…Counsel for the Federal Crown Mr. Brendan Coffey………………………………………………………..…..Counsel for J.A.
March, M.G., J. :
Introduction
[1] On October 11, 2022, the accused, J.A., entered pleas of not guilty to the following alleged offences:
a) possession for the purpose of trafficking in cocaine,
b) possession for the purpose of trafficking in crack cocaine,
c) possession for the purpose of trafficking in fentanyl,
d) possession for the purpose of trafficking in codeine,
e) possession for the purpose of trafficking oxycodone,
f) possession of the proceeds of crime,
g) breach of probation (keep the peace and be of good behaviour), and
h) obstruction of a peace officer for providing a false name.
[2] At the outset of the trial, defence counsel on J.A.’s behalf brought an application under section 7 of the Canadian Charter of Rights and Freedoms (the “Charter”) seeking the disclosure of all source documents relied on by an affiant who swore an Information to Obtain (“ITO”) a Feeney warrant for the arrest of R.S. of 216 C. St., Pembroke, ON.
[3] At the conclusion of submissions made by defence and Crown counsel, I adjourned the trial to January 11, 2023 for my decision to be rendered.
[4] These are my reasons.
Agreed Factual Background
[5] In May 2021, the Ontario Provincial Police (“OPP”) undertook “Project NEILD”. The aim of the investigation was to target the sale of cocaine in Renfrew County. In addition to surveillance and other techniques, the OPP utilized two undercover officers (“UCO’s”).
[6] While carrying out the project, the OPP became aware of one R.S. Allegedly, she became known by UCO’s to facilitate drug transactions in and about the City of Pembroke. Some of these occurred at 216 C. St. where the UCO’s came to understand that R.S. resided.
[7] On December 2, 2021 at 6 AM, the OPP attended at her home to execute a Feeney warrant upon formation of reasonable grounds to arrest her.
[8] When the officers knocked on her door, R.S. presented herself and was promptly arrested. However, officers then entered her home and found an unknown male, J.A., laying on a couch. He was repeatedly asked to show his hands by the officers. He kept his left one out of sight and under a blanket.
[9] In consequence of his failure to show both hands, one of the officers shone the light function of his taser on J.A.’s body. He was then investigatively detained by police, and identified, whereupon he allegedly provided a false name.
[10] Following a ‘pat down’ search for weapons, the OPP located in J.A.’s pants pockets the following:
a) a nylon bag and a clear plastic bag, both later determined to contain a total of 15.6 g of cocaine, 16.2 g of fentanyl and 6.84 g of crack cocaine,
b) Canadian currency,
c) a white pill bottle, containing 10 oxycodone tablets and 8 codeine tablets, and
d) a small pocket knife.
[11] J.A. was not known to the OPP prior to December 2, 2021.
[12] Defence counsel wrote to request disclosure from the Crown after being retained by J.A. on March 2, 2022. The initial disclosure package delivered to defence counsel contained both the Feeney warrant for R.S.’s arrest and the associated ITO.
[13] In a letter requesting additional disclosure dated March 25, 2022, defence counsel sought the investigative file associated with the ITO, which file had been relied upon by the affiant who drafted the ITO.
[14] Following email exchanges between counsel, the Crown requested a judicial pretrial (“JPT”) to receive input on the issue of disclosure.
[15] On March 28, 2022, defence counsel indicated that judicial input would not change his position. Either the Crown would have to disclose the investigative file, or defence counsel would bring the application herein.
[16] Apparently, a JPT was held on May 5, 2022. October 11, 2022 was set aside thereafter for the hearing of this disclosure application. A further Charter application hearing date was reserved for March 23, 2023. Trial dates have been fixed for July 25 and 26, 2023.
The Position of the Defence
[17] Defence counsel has been precise in setting out exactly what it is he seeks by way of additional disclosure. He wants only the file associated with the drafting of the Feeney warrant for R.S. Those materials may include, but are not limited to:
a) surveillance reports,
b) confidential informant (“CI”) debriefs offered by the handler(s),
c) UCO debriefs confirmed by both the UCO and the handler(s),
d) occurrence reports,
e) duty book notes, and
f) any other materials relied on by the affiant who swore to the ITO for the Feeney warrant.
[18] Defence counsel contends that the law is clear. Making full answer and defence in cases involving warrants is impossible without the supporting documents utilized by the affiant.
[19] Defence counsel relies heavily upon the decisions of R. v. McKenzie 2016 ONSC 242 and R. v. Ally 2017 ONSC 5375. Both cases, defence counsel submits, stand for the proposition that the Crown is obliged to disclose “all relevant information in the investigative file”, and that “the information that must be disclosed includes information that the affiant relied upon in obtaining the warrant”.
[20] Defence counsel argues that the reasoning in McKenzie is sound. Without disclosing the materials which the affiant used to draft the ITO, an accused is left with no meaningful way to assess whether both facial and sub-facial challenges to a search warrant will bear fruit. Nor will an accused be able to assess whether the affiant complied with his or her obligation to make full, frank and fair (“FFF”) disclosure to the issuing justice.
[21] Cross-examination is key to assessing both the sufficiency of the warrant and the issue of whether the affiant complied with his FFF obligation before the issuing justice.
[22] Since the Supreme Court of Canada issued its benchmark decision in R. v. Garofoli, the law is well settled that a reviewing court should only grant leave to cross-examine the affiant in cases where it would tend to elicit evidence relevant to the issuance of the warrant itself. The aim is to avoid unduly protracted proceedings by preserving the right to cross-examine only in such cases.
[23] According to defence counsel, the Crown’s failure to disclose the investigative file in this case fuels prolixity and breaches an accused’s section 7 Charter rights.
[24] The defence contends that the position the Crown may later take that J.A. has no standing to challenge the Feeney warrant for the arrest of R.S. is premature for determination at this juncture.
[25] The Crown has already disclosed the Feeney warrant and the ITO. Tacit in that decision is an assessment by the Crown that the warrant is not clearly irrelevant to making full answer and defence. However, defence counsel reiterates, the ITO is of no use without the associated investigative file.
[26] In essence, the defence takes the position that the investigative file and the ITO are inextricably linked to one another. Disclosure of one requires disclosure of the other.
[27] The Crown cannot refuse to disclose materials based on its contention that an accused does not have a reasonable expectation of privacy in the place where judicial authorization to arrest an individual was granted, and to a certain extent, has already been disclosed.
[28] Put simply, the OPP’s authority for going into R.S.’s residence with the Feeney warrant is key. If the defence does not have the basis to understand the grounds for its issuance, it does not have the means to determine whether the arrest was illegal. Without the warrant, the OPP would have not had any interaction with J.A. Police cannot rely upon illegally obtained evidence or information from third parties.
The Position of the Crown
[29] The Crown points out that the materials sought by the defence are not the fruits of the investigation of J.A. Rather, they relate only to R.S.
[30] J.A. has yet to establish standing to challenge the Feeney warrant, and thus the associated investigative file used to draft the ITO for the warrant is clearly irrelevant.
[31] As stated by the Court of Appeal for Ontario in R. v. Jackson 2015 ONCA 832 at paragraph 93, “In its normal, natural everyday sense, the phrase “fruits of the investigation” posits a relationship between the subject matter sought and the investigation that leads to the charges against an accused. It refers to information acquired by means and in consequence of that investigation.”
[32] Later in R. v. Gubbins 2018 SCC 44 at paragraph 22, the Supreme Court of Canada held: “[The fruits of the investigation] refer to the police’s investigative files, as opposed to operational records or background information. This information is generated or acquired during or as a result of the specific investigation into the charges against the accused.”
[33] Clearly, the material sought by the defence are not therefore the fruits of the investigation of J.A.
[34] The Crown agrees that the Stinchcombe [1] standard requires disclosure of source documents to an accused who is the subject of a warrant, or in some instances who is otherwise involved in or the target of the police investigation prior to a warrant being executed.
[35] All authorities upon which defence counsel relies involve an accused who was specifically named in a warrant. J.A. was not a person of interest uncovered over the course of time Project NEILD was carried out. No Feeney warrant, or any other warrant sought by the police touched upon J.A.
[36] In essence, the materials sought by defence counsel, the investigative file associated with the ITO used to obtain a Feeney warrant for the arrest of R.S., had nothing to do with J.A. They are therefore clearly irrelevant.
[37] J.A. was arrested when he failed to comply with OPP demands at the time R.S.’s Feeney warrant was being executed.
Analysis
[38] Since Stinchcombe, the Crown has a broad duty to disclose all relevant, non-privileged information in its possession or control. Of course, the Crown must turn over to an accused all materials that relate to a police investigation of him or her. Those are the fruits.
[39] Part of the section 7 Charter right to life, liberty and security of the person includes the right to make full answer and defence. Anything short of full disclosure of the fruits is a violation of one of the most fundamental Charter rights.
[40] An accused is entitled to complete disclosure to make full answer and defence, and to have before him or her the full case to be met as brought against him or her by the Crown.
[41] In my view, the investigative file sought by the defence is almost entirely unrelated to the case the Crown intends to bring against J.A.
[42] The investigative file bears significance only to the grounds police formed to arrest R.S. When they attended to execute the warrant presumed to be validly judicially authorized to arrest R.S., J.A. was a veritable ‘found in’ at her residence. [2]
[43] The defence argument puts the cart before the horse. J.A. must first establish he has standing to challenge the Feeney warrant issued to arrest R.S. Until then, he has no basis to seek the supporting material which led to the issuance of the warrant for the arrest of a third party, R.S.
[44] In any event, I am not at all satisfied on the defence evidence put before me that the OPP lacked grounds to arrest R.S. The defence materials included the ITO itself – an Information sworn on or about November 29, 2021 by Detective Constable Brad Zandstra in support of the issuance of the Feeney warrant. The Information articulated grounds for the arrest of R.S., amongst them:
a) her address being historically entered as 216 C. St., Pembroke, ON in the records management system (“RMS”) police database,
b) Detective Constable Zandstra’s personal knowledge based on surveillance conducted upon 216 C. St. during multiple prior drug investigations, and on witnessing firsthand the comings and goings of R.S. in connection with the residence,
c) the UCO’s attempts to acquire “white”, a street term for cocaine, through conversations with R.S., which included the UCO being brought to 216 C. St.,
d) the UCO’s purchase of cocaine on one occasion inside 216 C. Street, Pembroke from one D.S. (“D.S.”) while R.S. was present, and
e) multiple other occasions where UCO’s went to 216 C. Street, Pembroke to buy illegal drugs.
[45] I appreciate that the investigative file would assist in determining the more precise details and circumstances surrounding the UCO’s interaction with R.S. than what the ITO of Detective Constable Zandstra sets out. However, I fail to see how the file could assist J.A. in making full answer and defence. Defence counsel’s submission that the police lacked proper grounds for the arrest of R.S. is purely speculative. It assumes that Detective Constable Zandstra was noncompliant with his FFF obligations, that he misrepresented or overstated the nature of the UCO’s interaction with R.S. and that the OPP lacked reasonable grounds for her arrest.
[46] I am not satisfied that the Crown’s decision to disclose the Feeney warrant and its underlying ITO automatically made the investigative file relevant to the Crown’s case against J.A. In the absence of that information, the defence would have no knowledge as to why members of the OPP presented themselves at R.S.’s door at 216 C. St., Pembroke on the morning in question, and began interacting with J.A.
[47] All authorities which the defence has put before me to explain why the investigative file associated with the ITO is relevant and disclosable involve accused who were named in the warrants. The source notes that assisted in the drafting of the ITO all directly touched upon the investigation of those accused. They were the fruits.
[48] For this reason alone, the cases of McKenzie and Ally and their progeny do not assist the defence.
[49] The investigative file sought by the defence, specifically:
a) surveillance reports,
b) CI debriefs,
c) UCO debriefs,
d) occurrence reports,
e) UCO and CI handler notes, and
f) other materials relied on by Detective Constable Zandstra
are simply not part of the OPP investigation into suspected criminal or illegal activity on J.A.’s part. Those materials are not at his disposal for harvesting. To grant access to them by the defence, in this case, would serve only to permit him to go on a fishing expedition.
[50] In any event, J.A. is not without the means to mount section 8 and 9 Charter challenges alleging that:
a) his detention and subsequent arrest by the OPP were arbitrary,
b) the search of his person was unreasonable, and
c) the seizure of the contents of his pockets ought to be excluded from his trial.
[51] Without prejudging the matter, of course, the scope of the Feeney warrant was limited. The OPP went to 216 C. St., Pembroke with authority to arrest R.S. in her home. Yet, members of the OPP chose to engage J.A. as they did during the execution of the warrant.
Conclusion
[52] If I were to grant the defence application, ironically, I would be doing exactly what the defence has urged I should not. I would be contributing to the prolixity of the proceedings and the length of J.A.’s trial.
[53] For the reasons set out above, I must deny the application herein.
DATED: January 11, 2023
March, M.G., J.