SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 11-90000511-0000
DATE: 20121217

RE: HER MAJESTY THE QUEEN

– and –

ANDREW BARNES and TRYSTON CORCHO

BEFORE: Justice G.R. Strathy

COUNSEL:
M. Nassar, for the Crown
P. Bacchus, for Andrew Barnes
J. Razaqpur, for Tryston Corcho

DATE HEARD: November 7, 2012

RULING: INVESTIGATION PRIVILEGE

[1] Andrew Barnes (Barnes) and Tryston Corcho (Corcho) stood jointly charged with trafficking in cocaine contrary to s. 5(1) of the Controlled Drugs and Substances Act. Corcho was also charged with possession of the proceeds of property obtained by crime, contrary to s. 354(1) (a) of the Criminal Code.

[2] The Crown invoked investigation privilege over answers to questions that would disclose the surveillance location from which an undercover officer made his observations of the accuseds. I ruled that a qualified privilege existed and such questions could not be asked. These are my reasons.

Factual Background

[3] Barnes and Corcho were charged as a result of an “opportunity drug buy” conducted by members of the Toronto Police Drug Squad at the Sheridan Mall in Toronto on July 14, 2011.

[4] An undercover officer, D.C. Carleton (Carleton), posed as a drug buyer and walked about the exterior of the Mall, attempting to purchase drugs. His activities were observed by other undercover members of the Drug Squad, including D.C. Kim (Kim), who was in the undisclosed surveillance location.

[5] Carleton testified that he approached Corcho, who was standing in front of the entrance to the Mall, and asked where he could buy drugs. He said that Corcho told him that he had run out, but that he would call his supplier. After about 40 minutes, Carleton returned to the location where Corcho had been standing and Corcho told him that his supplier would be there in ten minutes.

[6] Carleton waited by the front of the Mall. About ten minutes later he asked Corcho whether he was sure that his supplier was coming. He testified that Corcho then nodded towards the parking lot and Carleton saw Barnes, who he took to be the supplier, walking towards the Mall entrance.

[7] Carleton testified that Corcho asked him whether he had the money to pay for the drugs and he said that he did. Corcho told him to wait where he was and then slipped into an alcove by the entrance to the Mall.

[8] Carleton testified that very soon after, he saw Barnes, followed by Corcho, emerge from the alcove and walk towards him. Carleton had the police “buy money” in his hand and he handed it to Barnes. Barnes said, “Not me, him”, nodding back towards Corcho.

[9] Carleton said that Barnes kept on walking past him. He then handed Corcho the buy money and Corcho placed a small chunk of cocaine, wrapped in a napkin, in his hand. Shortly after this, Carleton gave the “deal done” signal to the members of the undercover team and the accused were arrested.

[10] This entire transaction was alleged to have occurred in the general vicinity of two large pillars located outside the front entrance of the Mall.

[11] In the course of a pre-trial application, Kim testified that he was in a location from which he was able to observe the interaction between Corcho and Barnes in the alcove by the Mall entrance. He said that he did not wish to disclose the precise location from which he made his observations as the same technique, or similar techniques, were still being used in other investigations. He was equipped with a police radio with which he could send and receive messages to the surveillance team, but he could not communicate with Carleton who had a one-way radio, enabling him to send transmissions to the officer in charge of the operation.

[12] Kim testified that he observed Barnes crouch down and put a white object on the ground. During his evidence at trial, he gave varying descriptions of this object as being the size of the palm of his hand and between the size of a golf ball and a tennis ball. He said that he observed Corcho reach down and pick up the object and then walk towards Carleton and engage in a “hand to hand transaction” with Carleton, following which the “deal done” signal was given.

[13] Kim said that he made these observations at ground level, from a distance of between 15 and 30 metres. He said that he made them with his own eyes, unassisted by binoculars. He said that he had no problems with his vision and does not wear glasses or contact lenses. He objected to disclosing information on whether he made these observations from inside or outside, because it would disclose investigative techniques and information concerning third parties who permitted their premises to be used for investigation purposes.

[14] The Crown raised the issue of investigation privilege with respect to Kim’s evidence. There was further examination and cross-examination of Kim on the voir dire with respect to this issue. He testified that he was able to see well from his location. He may have moved from time to time to get a better vantage point, but he only made observations from the one location. There were no permanent obstructions interfering with his vision. The area was well lit. From time to time people walked by him – perhaps ten people. He said that he required the cooperation of a third party in order to conduct his surveillance and that the third party was aware of his activities, knew that he was a police officer, and cooperated.

[15] Having heard this evidence, and the submissions of counsel, I ruled that questions would not be permitted if the answers would tend to disclose the location from which Kim conducted his observations, or would disclose the ownership or occupancy of the property from which he conducted those observations. Nor would questions be permitted if the answer would tend to disclose whether he was inside or outside a building. Questions would, however, be permitted on the following subjects:

• his distance from both accused at the times of his observations;

• whether that distance varied from time to time, and if so, to what extent;

• whether he was stationary or moved about and, if so, to what extent;

• what level he was at – that is, whether he was on ground level or elevated;

• the lighting conditions, including natural and artificial light, provided the questions do not seek information concerning whether he was inside or outside a building;

• the weather conditions at the time;

• whether his vision was enhanced by binoculars, glasses or contact lenses;

• whether his vision or line of sight was obstructed in any way by people, automobiles or other objects, whether transitory or permanent structures;

• whether the accused were facing him when he observed them and what parts of their bodies he saw.

[16] The scope of the topic in the last bullet was amended in the course of the trial when Kim stated that disclosing whether an accused was facing him would tend to indicate his location.

[17] I advised counsel that the jury would be instructed that in determining the weight, if any, to be given to Kim’s evidence, they could take into account the limits on defence counsel’s ability to cross-examine him.

Investigation Privilege

[18] A qualified privilege attaches to evidence concerning police investigation techniques and the location of observation posts. The leading Ontario case on investigation privilege is R. v. Richards (1997), 34 O.R. (3d) 244, [1997] O.J. 2086 in which the Court of Appeal stated, at para. 11:

Disclosure of police investigative techniques is subject to a qualified privilege: R. v. Meuckon (1990), 57 C.C.C. (3d) 193 (B.C.C.A.). Where the claim is made, the judge must first decide whether the information sought is relevant to an issue in the proceedings. Second, if relevant, evidence of the investigative techniques used will not be disclosed if the public interest in effective police investigation and the protection of the [sic] those involved in, or who assist in such investigation, outweigh the legitimate interests of the accused in disclosure of the techniques.

[19] Related to the qualified privilege for investigative techniques is the “observation post” privilege. This was discussed in a thorough analysis of the jurisprudence by the British Columbia Court of Appeal in R. v. Lam, 2000 BCCA 545, [2000] B.C.J. No. 2006. In that case, Esson J.A., giving the judgment of the court, stated at para. 25:

I conclude that the American authorities are very much to the same effect as the English decisions. The observer need not disclose the precise location but, if his observations are to be given in proof of the charge, the prosecution must provide as much information about the location as can be given without revealing its exact location. On a jury trial, the jury must be instructed to take into account the disadvantages thus imposed on the accused in deciding whether to accept the evidence of the observer.

[20] Esson J.A. went on to refer to Richards, noting that the investigation privilege and the observation post privilege are related or analogous – at para. 26:

The only decision of a Canadian appellate court which, at the time of the hearing of this appeal, had considered the observation post privilege is R. v. Richards (1997), 115 C.C.C. (3d) 377 (Ont. C.A.). As with virtually all of the authorities, it arose in a prosecution for narcotics trafficking. In the course of the preliminary inquiry, the Crown had objected to the disclosure of information pertaining to the location from which a police officer observed the alleged sale of narcotics and the disclosure of the automobile used by the undercover officers when the alleged drug purchase was made. This was not a matter of protecting the identity of the person who made the location available. The purpose was to protect police investigative methods. That difference, in my view, does not render the decision inapplicable. There is, as all the cases recognize, an analogy between the position of the informer and that of the occupier of property who makes it available to the police. On the other hand, when the issue is whether the police observer should be allowed to give evidence in proof of the charge without disclosing the exact location of the post, the more obvious analogy is to the privilege against disclosing investigative methods.

[21] The Court of Appeal, at paras. 31-36 and 41, also referred to its decision in R. v. Meuckon (1990), 57 C.C.C. (3d) 193, in which Lambert J.A. stated that a trial judge is required to consider whether the public interest in the accused being allowed to make full answer and defence is overridden by the interest asserted by the Crown and, if the evidence is admitted, whether appropriate safeguards can be put in place.

[22] Meuckon was also referred to by the Ontario Court of Appeal in Richards, above. In Meuckon, Lambert J.A. observed at p. 200:

In my opinion, if the privilege is claimed in a criminal trial, the trial judge must decide first whether the information might possibly affect the outcome of the trial. His decision on that question may well be influenced by whether the trial is being conducted by a judge alone or by a judge and jury. If a decision to uphold the claim of privilege and to prevent the disclosure of the information could not affect the outcome of the trial, then the privilege claim should generally be upheld. But if the decision to uphold the claim of privilege might affect the outcome of the trial, then the trial judge must consider whether the upholding of the claim of privilege would have the effect of preventing the accused from making full answer and defence. If the trial judge concludes that the claim of privilege would have that effect he should then consider giving the Crown the alternative of either withdrawing the claim of privilege or entering a stay of proceedings. If the Crown refuses to do either, then the trial judge may permit the introduction of the evidence though the trial judge may impose whatever safeguards seem appropriate.

In short, the trial judge should consider whether the public interest in allowing the accused to make full answer and defence to a criminal charge can be overridden by the interest asserted by the Crown. The ultimate safeguard of the privileged information lies in the Crown's power to enter a stay of proceedings.

[23] To sum up these authorities, a trial judge must ask:

• Is the evidence relevant? If it is not relevant, the issue of admissibility does not arise.

• Could the information sought to be disclosed reasonably affect the outcome of the trial? If not, then the need for disclosure will be reduced and the claim for privilege can safely be upheld.

• If the evidence is relevant and could reasonably affect the outcome of the trial, would upholding the claim for privilege have the effect of preventing the accused from making full answer and defence? If not, then there is presumably less concern about upholding the claim for privilege.

• If the claim for privilege could prevent the accused from making full answer and defence, and the Crown is not prepared to either stay the proceedings or withdraw the claim for privilege, the trial judge must engage in a balancing process, weighing the interests of the accused on the one hand and the interests of society in protecting investigation techniques and the security of third parties on the other hand. If necessary to strike a fair balance, the court may impose appropriate safeguards before permitting the introduction of the evidence.

Analysis

[24] Kim’s evidence was clearly relevant and of central importance to the case against Barnes. It was not the only evidence against Barnes, because the jury might have accepted Carleton’s evidence that Barnes said “not me, him”, when he offered the buy money to Barnes. Kim was, however, the only eyewitness to the alleged transfer of the cocaine by Barnes to Corcho.

[25] During the trial, after the jury had heard Kim’s evidence, I suggested that the Crown reconsider the claim for investigation privilege in light of the probability that the jury would likely be able to draw an inference about the location from which Kim made his observations. Crown counsel advised that she was unable to do so in light of the third party interests at stake.

[26] The evidence at issue clearly could affect the outcome of the trial, particularly the case against Barnes, which relied almost entirely on Kim’s evidence.

[27] Upholding the claim for privilege in this case would have impacted the ability of the accused to make full answer and defence, but it would not have prevented them from doing so. It would have had some impact on their ability to effectively cross-examine Kim on his ability to observe the events in question, but it would not prevent them from doing so.

[28] The ultimate determination of admissibility requires a balancing of the public interest in protecting police investigation techniques as well as the interests of third parties who permit the use of their premises as observation posts, against the right of an accused person to make full answer and defence. I concluded that, in this case, the claim for privilege did interfere with the right of the accused to make full answer and defence. This was particularly so in the case of Barnes and considerably less so in Corcho’s case, where Carleton’s evidence was far more important.

[29] I concluded, however, that this interference could be offset in two ways. First, by giving explicit guidelines, set out above, concerning the permissible scope of cross-examination of Kim about ability to observe the events in question. Second, by giving a specific instruction to the jury.

[30] Keeping within the scope of the guidelines, defence counsel were able to cross-examine Kim at length concerning his opportunity to observe, his distance from the events that he witnessed, his description of Barnes, the absence of any detail in his notes concerning the “unknown object”, and the varying descriptions in his evidence of the nature and size of that object. In her closing submissions, counsel for Barnes contrasted Carleton’s evidence that the object handed to him by Corcho was the size of a “loonie” or “toonie” with Kim’s evidence that it was somewhere between the size of a golf ball and a tennis ball.

[31] I instructed the jury that because the claim for investigation privilege limited their ability to assess how well Kim was able to observe the events about which he testified, they were required to take this into account when they assessed his evidence and that it might affect the reliability, or weight, if any, that they attached to his evidence. I told them that they should carefully consider the extent to which they could rely on Kim’s evidence.

[32] As events transpired, the jury found Barnes not guilty on the single count against him. Corcho was found guilty on both counts.

G.R. Strathy J.

DATE: December 17, 2012