ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO . CR-12-40000269-0000
DATE: 20121121
B E T W E E N:
HER MAJESTY THE QUEEN
S. Cressman, for the Respondent, Her Majesty the Queen
RESPONDENT
- and -
ANDINE TAYLOR
D. Midanik, for the Applicant Andine Taylor
APPLICANT
HEARD: November 19 and 20, 2012
Thorburn J.
RULING RE WHETHER TO DISCLOSE INFORMATION REGARDING CONFIDENTIAL INFORMANT
1. The Issue
[1] The accused, Taylor, is charged with 12 gun-related offences including possession of two loaded firearms and transfer of those firearms for the purpose of trafficking.
[2] Taylor seeks disclosure of unvetted information prepared in support of the search warrant to search his apartment on the day of his arrest. Officer Fredericks testified that evidence was provided to him by a confidential informant late on April 13 th or early on April 14 th , 2010. This information was filed in support of a search warrant to search Taylor’s premises on the day of his arrest.
[3] Before being disclosed to Taylor, the material was vetted to remove information provided by the confidential informant.
[4] Taylor does not challenge the assertion that the person who provided information to Officer Fredericks was a confidential informant and the information is subject to confidential informant privilege. However, Taylor seeks disclosure of the unvetted information provided by the confidential informant on the basis that his innocence is at stake as he says this information could raise a reasonable doubt as to his guilt.
II. Positions of the Parties
[5] Taylor chose to testify. He has no criminal record and testified that he has never been charged with a criminal offence.
[6] He states that a person with the nickname Kempes, whom he suggests is a man known to be violent toward others and feared by him, told him he had to take possession of the firearms. Taylor says he was under duress when he took possession of the firearms from Philips and kept them in his apartment for approximately one week. He was in the process of returning them to Philips, a person authorized to take them on behalf of Kempes, when he was arrested.
[7] Taylor claims that evidence found in the blacked out portions of the information could raise a reasonable doubt as to his guilt for the following reasons:
i. the confidential informant may know something about Taylor’s relationship with Kempes and if so, he could corroborate Taylor’s testimony that he was acting under duress; and
ii. the information would outline the basis for the claim that Taylor had a firearm on April 13 or 14 th , 2010. This Taylor says, is false. By suggesting Taylor had a firearm on April 13 or 14 th , the confidential informant put Taylor’s good character in issue as he has no criminal record and testified that he never had possession of a firearm until “approximately one week” before April 23, 2010.
[8] The Crown takes the position that it is not necessary to disclose any of the evidence sought on this Application as none of it is likely to create a reasonable doubt as to the Applicant’s innocence. The Crown states that confidential informant privilege should not be waived as the information sought does not meet the test to satisfy the innocence at stake exception.
[9] The Crown contends that it is not relevant to this proceeding whether Taylor was in possession of a firearm on April 13 or 14 th, 2010 as the charges at issue in this proceeding involve the possession and transfer of firearms on April 23, 2010. The Crown also claims that if Kempes is the confidential informant, he is a material witness as his evidence is important to the defence of duress and therefore Kempes could be called as a witness whether or not he is a confidential informant.
III. The Legal Test
[10] Information about a confidential informant and information he or she may have imparted to the Crown remains subject to informer privilege subject only to the “innocence at stake” exception. The innocence at stake exception has been held to include circumstances such as where the informer is a material witness to the crime or acted as an agent provocateur . ( R. v. Scott, 1990 27 (SCC) , [1990] 3 S.C.R. 979 at paras 38-39 .) Where such a basis is established, the privilege must yield to the principle that a person is not to be condemned when innocence can be proven.
[11] The Supreme Court of Canada in R. v. Leipert 1997 367 (SCC) , [1997] 1 S.C.R. 281 at para. 33 and R. v. McClure , 2001 SCC 14 , [2001] 1 S.C.R. 445 at paras 48-51 outlined the two stage test that must be followed in deciding whether to reveal information that could identify a confidential informant.
[12] Before the test is considered, the accused must establish that the information sought is not available from any other source and the accused is unable to raise a reasonable doubt as to his guilt in any other way. ( R. v. Marshall (2005), C.C.C. (3d) 179 at para. 102 (Ont. C.A.)).
[13] If the Applicant establishes that the information is not available from any other source and the threshold is therefore met, the first stage of the test is considered.
[14] At the first stage, the Applicant must provide some evidentiary basis upon which to conclude that there exists a communication that could raise a reasonable doubt as to his guilt. At this stage, the judge decides whether to review the evidence.
[15] At the second stage, the trial judge must examine the privileged file to determine whether there is a communication that is likely to raise a reasonable doubt as to the guilt of the accused. The test in the first stage (could raise a reasonable doubt) is different than that of the second stage (likely to raise a reasonable doubt). If the second stage of the test is met, then the trial judge should order production but only of that portion of the solicitor-client file that is necessary to raise the defence claimed.
[16] The burden of proof lies on the Applicant to satisfy this two-stage test on a balance of probabilities.
[17] The evidence sought should be considered in conjunction with other available evidence in order to determine its importance. It is the totality of the evidence that governs. The test is a stringent one. If the court concludes that disclosure is necessary, the court should only reveal as much information as is essential to allow proof of innocence. ( The Honourable Justice David Watt, Watt’s Manual of Criminal Evidence (Toronto: Thomson Carswell, 2012) at 164 and R. v. Leipert , 1997 367 (SCC) , [1997] 1 S.C.R. 281 at para. 33 .)
IV. Application of the Law to The Facts
[18] On the basis of the submissions made, Taylor does not meet the threshold to be met to invoke the two stage test. He has not established that the information sought is not available from any other source.
[19] Information regarding where, when, how and under what circumstances the firearms seized from Taylor were obtained by him is available by calling either Philips or Kempes. Philips was present at the time Taylor took possession of the firearms and was one of the two people who was present at the time of Taylor’s arrest for possession of firearms. Philips is available and his whereabouts are known. The Crown has offered to assist Taylor in locating Kempes.
[20] Taylor claims he does not want to call Kempes as a witness at trial as he is afraid of him. Taylor says his sister and his wife’s mother in Jamaica were both told that if he testified in this proceeding, his life and the lives of his family would be put at risk. Taylor chose to testify notwithstanding this information and has already incurred this risk.
[21] Taylor has failed to meet the threshold as he has not established that the information regarding his association with Kempes and the reason he took the firearms is not available from any other source.
[22] Taylor’s counsel claims Kempes may be the confidential informant. The Crown advises that the name of the confidential informant, who is the source of the unvetted information, is not contained in the unvetted information. However, even if Kempes were the confidential informant, his evidence could be compelled as he is a material witness to Taylor’s defence of duress.
[23] Moreover, the Crown does not challenge Taylor’s testimony that he has no history of firearms charges and he obtained the firearms approximately one week before April 23, 2010 from Philips after receiving a telephone call from Kempes. The Crown concedes there is no evidence that the firearms at issue in this trial were in Taylor’s possession for more than approximately one week prior to April 23, 2010. As such there is no evidence that Taylor had a history of carrying firearms until “approximately one week” before April 23, 2010. This information could not therefore serve to raise a reasonable doubt as to his guilt on these charges.
[24] The application to disclose information provided by a confidential informant is denied because Taylor has not met the threshold that the information sought is not available from any other source. Moreover, the information as to whether Taylor had a firearm on April 13 or 14, 2010 is not likely to raise a reasonable doubt as to Taylor’s guilt on these charges.
Thorburn J.
Released: November 21, 2012
COURT FILE NO . CR-12-40000269-0000
DATE: 20121121
ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: ANDINE TAYLOR Applicant - and – HER MAJESTY THE QUEEN Respondent RULING Thorburn J.
Released: November 21, 2012