ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 11379
DATE: 2013/07/23
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
FLORIANO DAPONTE
Applicant
Kimberley G.R. Johnson, for the Respondent
Enzo M. Battigaglia, for the Applicant
HEARD: July 9, 2013
RADY J.
Ruling
Introduction
[1] The accused brings two applications. The first is for an order varying his recognizance of bail on the basis of a material change in circumstance. The second is for an order to compel disclosure. The defence submits that the Crown has failed to meet its Stinchcombe[^1] obligations. In oral argument, Mr. Battigaglia focused on two primary areas of non disclosure. The first was certain informant files and the other was occurrence reports respecting vehicle stops and searches before, during and after the warrants were issued and executed. In the application material, the accused also requests the dates of any occurrence reports already disclosed but which have been redacted; redacted information from the notes of certain officers that it is said do not tend to reveal the identity of a confidential informant; minutes of meetings conducted by police officers in relation to a project that will be described below; and the notebook entries of some 28 officers.
[2] For the reasons that follow, I dismiss both applications.
Background
[3] Project Stannum was an OPP investigation launched in response to civilian complaints and police suspicions that Mr. Daponte was trafficking in prescription medication, cocaine and other controlled substances from his residence and the properties located at 25674 Napier Road and 25684 Napier Road, Adelaide-Metcalfe Township, in Middlesex County.
[4] On July 12, 2012, Detective Constable Christopher Onslow, a member of the OPP sought and obtained a s. 487.01 Criminal Code general warrant to covertly attend and trespass on property adjacent to the Napier Road properties to establish an observation point from which police could observe suspected illicit drug activity at the Napier addresses, verify confidential source information, and develop a plan to execute a further search warrant.
[5] On August 17, 2012, Officer Onslow subsequently sought and obtained a search warrant pursuant to s. 11 of the Controlled Drugs and Substances Act.
[6] During the execution of the search warrant, the police located crack cocaine, marijuana and a large quantity of prescription pills, including oxycontin, dilaudid, morphine and ecstasy. Almost $40,000 in currency was seized along with a bag of used fentanyl patches, six scales and two boxes of baggies. Three firearms and assorted ammunition were also seized.
[7] Mr. Daponte was arrested and charged with a number of offences under the CDSA and the Criminal Code.
[8] The investigation involved approximately 120 Ontario Provincial Police officers, with a range of assignments from different law enforcement sections, including the Drug Enforcement Unit, the Tactics and Rescue Unit, the Provincial Weapons Enforcement Unit, the Explosive Disposal Unit, the Emergency Response Unit. Uniformed officers from numerous detachments, including some from Essex, Lambton, Middlesex and Prince Edward Counties were also involved.
[9] A preliminary hearing is scheduled for October of this year. In the meantime, Mr. Daponte is not detained on the charges. He has been released, without surety, subject to certain terms, including that he report weekly to Strathroy OPP and that he not attend at the Napier properties. He consented to the terms of his release.
[10] Mr. Daponte has a criminal record spanning some twenty years for similar and other offences. The most recent entry is from 2009.
[11] He seeks to have the reporting condition deleted and an order permitting him to attend the Napier properties for up to five hours daily to allow him to assist Vivian Lee with a business that she operates from those premises. Ms. Lee has filed an affidavit in which she deposes that Mr. Daponte would be of assistance to her, that running the operation alone is burdensome and that with his assistance, she could recoup lost revenue. There is also an allegation in the material that Mr. Daponte requires this work in order to continue to retain counsel.
[12] Mr. Battagaglia submits that the material change in circumstance is the Crown’s late or failure to disclose, which causes prejudice to the accused.
[13] For the sake of completeness, I note that a preliminary objection was raised to the Crown’s late service of its responding material. Counsel suggested the defence was prejudiced and requested an order prohibiting the Crown from relying on its material at the hearing of the application. It relied on R. v. Blom (2002), 2002 45026 (ON CA), 61 O.R. (3d) 51 (C.A.) as authority for the proposition that the court can make such an order. I ruled against the objection on the basis that if there were any prejudice (which was not apparent) the remedy would be an adjournment.
Outstanding Disclosure
[14] Disclosure has been provided to defence counsel in three principal groups. The first was provided on October 10, 2012; the second on November 22, 2012; and the third on January 30, 2013 (which included redacted copies of the authorizations). Additionally, defence counsel was served with certificates of analysis on November 7, 2012, a firearms report on February 6, 2013, and a copy of the accuseds’ interviews with police on February 19, 2013. The respondent has also responded by letter dated March 28, 2013 to the applicant’s concerns about outstanding disclosure.
[15] The Crown submits that outstanding disclosure is limited to the following:
• the notes of Officer Daley (who is on paternity leave and whose involvement was limited to security of the perimeter without participation in the search or involvement with the applicant);
• the notes of Officer Ferrao (who is on a secondment and whose involvement was limited to security of the perimeter without participation in the search or involvement with the applicant);
• the notes of Officer Salters (who was responsible for conducting a parallel proceeds of crime investigation and whose notes have been requested); and
• the notes of Officer (David) Smith (whose involvement – limited to security of the perimeter without participation in the search or involvement with the applicant – was missed by the file coordinator and which have been requested).
[16] It is helpful to reproduce the following chart from the Crown’s material which sets out the disclosure requests and the Crown’s response.
Application
Defence requests:
Crown Response
Crown Response to Application
Para. 11
The informant files relating to the 8 confidential informants relied upon by the police affiant to support the authorizations obtained
Crown asserts the informant files are privileged and irrelevant.
Para. 12
Any occurrences involving 25674 and 25684 Napier Road in the Township of Adelaide-Metcalfe, within Middlesex County, before, during and after the issuance and execution of warrants
At no time during the course of the investigation were vehicle stops conducted by or at the direction of officers involved in this investigation. Any stops that may have occurred were not relied upon by the affiant and exist outside the investigative file.
Para. 13
The dates of any occurrence reports already disclosed which have been redacted.
Occurrence reports provided because they were relied upon by the affiant have been redacted to prevent a narrowing of the pool of confidential informants and/or to protect the identity of confidential informants.
Para. 15
Redacted information from the notes of certain officers that do not tend to reveal the identity of a confidential informant.
Officers notes have been redacted:
(i) to protect source information;
(ii) to protect third party information (ie. dates of birth, addresses); and
(iii) in respect of other investigations that the officers were involved in.
Para. 16
Minutes of meetings conducted by police officers in relation to Project Stannum.
Any Minutes that were taken have already been provided in disclosure:
May 3, 2012 – lst wave;
August 15 and 18, 2012-1st wave; and
July 11, 2012 – 3rd wave.
Meeting on June 21, 2012: no notes taken due to misunderstanding regarding who would take the notes.
Meeting on June 27, 2012: no notes taken because the subject of the meeting was solely related to police techniques that could be used to execute warrants.
Para. 17
Notebook entries for the following officers:
Boles
p. 180 - 2ndBrenndorfer
Non-OPP Medic.
No notes regarding the investigation.Chatelaine
Non-OPP Medic
No notes regarding the investigation.Collins
p. 119 – 2nd waveCoulbeck
p. 5 – 2nd waveDaley
File Coordinator requested notes
Officer on paternity leave.
File Coordinator following up with further request. Involvement limited to perimeter security: no involvement with search or Applicant.Ferrao
File Coordinator requested notes.
Officer has been seconded.
File Coordinator following up with further request. Involvement limited to decontamination.Gray
p. 64 – 2nd waveGriffore
Civilian member of the OPP who acted as a scribe for Colbeck. No notesGroleau
p. 175 – 2nd waveJohnson
p. 112 – 2nd waveJohnstone
p. 107 – 2nd waveMacTavish
Photo CD – 3rd waveMcNorgan
p. 399 – 2nd waveNicholson
p. 889 – 1st waveReavie
p. 186 – 2nd waveRoss
p. 98 – 2nd waveSalters
Responsible for proceeds investigation. Request made for notes.Smith (Anthony)
p. 522 – 1st waveSmith (David)
File Coordinator missed this officer’s involvement
Notes requested involvement limited to perimeter security: no involvement with search or ApplicantStreefkerk
p. 711 – 1st waveHulsman (not Sulsman)
p. 191 - 2nd waveTarrant
p. 182 – 2nd waveWaddick
p. 36 - 3rd waveWalsh
p. 189 - 2nd waveWalton
p. 301 - 2nd waveWeber
p. 178 – 2nd waveYoung
p. 195 – 2nd wave
The Law
[17] It is apparent that one of the principal areas of dispute centers on informant files. The law respecting information privilege is well developed. One of the leading decisions is R. v. Leipert, 1997 367 (SCC), [1997] 1 S.C.R. 281 which dealt with an informant’s tip from a Crime Stoppers’ Association. The accused sought the Crime Stoppers’ document reporting the tip. The court ruled that informer privilege is of such fundamental importance to the criminal justice system that it cannot be balanced against other interests related to the administration of justice. Once the privilege has been established, neither the police nor the court possesses discretion to abridge it. The privilege belongs to the Crown, which cannot waive it without the informer’s consent. As a result, the privilege also belongs to the informer. The privilege prevents not only disclosure of the informer’s name, but also of any information which might implicitly reveal his identity.
[18] The informer privilege is subject only to the “innocence at stake” exception. In order to raise this exception, there must be an evidentiary basis to conclude that disclosure of the informer’s identity is necessary to demonstrate the innocence of the accused. I pause here to note that there was no suggestion that the exception applies here.
[19] The court in Leipert made the following observations about the importance of informer privilege:
A court considering this issue must begin from the proposition that informer privilege is an ancient and hallowed protection which plays a vital role in law enforcement. It is premised on the duty of all citizens to aid in enforcing the law. The discharge of this duty carries with it the risk of retribution from those involved in crime. The rule of informer privilege was developed to protect citizens who assist in law enforcement and to encourage others to do the same. As Cory J.A. (as he then was) stated in R. v. Hunter (1987), 1987 123 (ON CA), 57 C.R. (3d) 1 (Ont. C.A.), at pp. 5-6:
The rule against the non-disclosure of information which might identify an informer is one of long standing. It developed from an acceptance of the importance of the role of informers in the solution of crimes and the apprehension of criminals. It was recognized that citizens have a duty to divulge to the police any information that they may have pertaining to the commission of a crime. It was also obvious to the courts from very early times that the identity of an informer would have to be concealed, both for his or her own protection and to encourage others to divulge to the authorities any information pertaining to crimes. It was in order to achieve these goals that the rule was developed.
The rule is of fundamental importance to the workings of a criminal justice system. As described in Bisaillon v. Keable, 1983 26 (SCC), [1983] 2 S.C.R. 60 at p. 105:
The rule gives a peace officer the power to promise his informers secrecy expressly or by implication, with a guarantee sanctioned by the law that this promise will be kept even in court, and to receive in exchange for this promise information without which it would be extremely difficult for him to carry out his duties and ensure that the criminal law is obeyed.
In R. v. Scott, 1990 27 (SCC), [1990] 3 S.C.R. 979, at p. 994, Cory J. stressed the heightened importance of the rule in context of drug investigations:
The value of informers to police investigations has long been recognized. As long as crimes have been committed, certainly as long as they have been prosecuted, informers have played an important role in their investigation. It may well be true that some informers act for compensation or for self-serving purposes. Whatever their motives, the position of informers is always precarious and their role is fraught with danger.
The role of informers in drug-related cases is particularly important and dangerous. Informers often provide the only means for police to gain some knowledge of the workings of drug trafficking operations and networks. ... The investigation often will be based upon a relationship of trust between the police officer and the informer, something that may take a long time to establish. The safety, indeed the lives, not only of informers but also of the undercover police officers will depend on that relationship of trust. [Emphasis mine.]
Informer privilege is of such importance that once found, courts are not entitled to balance the benefit enuring from the privilege against countervailing considerations, as is the case, for example, with Crown privilege or privileges based on Wigmore’s four-part test: J. Sopinka, S. N. Lederman and A. W. Bryant, The Law of Evidence in Canada (1992), at pp. 805-6. In Bisaillon v. Keable, supra, this Court contrasted informer privilege with Crown privilege in this regard. In Crown privilege, the judge may review the information and in the last resort revise the minister’s decisions by weighing the two conflicting interests, that of maintaining secrecy and that of doing justice. The Court stated at pp. 97-98:
This procedure, designed to implement Crown privilege, is pointless in the case of secrecy regarding a police informer. In this case, the law gives the Minister, and the Court after him, no power of weighing or evaluating various aspects of the public interest which are in conflict, since it has already resolved the conflict itself. It has decided once and for all, subject to the law being changed, that information regarding police informers’ identity will be, because of its content, a class of information which it is in the public interest to keep secret, and that this interest will prevail over the need to ensure the highest possible standard of justice.
Accordingly, the common law has made secrecy regarding police informers subject to a special system with its own rules, which differ from those applicable to Crown privilege.
The Court in Bisaillon v. Keable summed the matter up by asserting that the application of informer privilege “does not depend on the judge’s discretion, as it is a legal rule of public order by which the judge is bound” (p. 93).
In summary, informer privilege is of such importance that it cannot be balanced against the other interests. Once established, neither the police nor the court possesses discretion to abridge it.
[20] Justice McLaughlin writing for the court in Leipert noted with approval the comments of Chief Justice McEachren of the British Columbia Court of Appeal as follows:
...[I]n 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.
[21] The Ontario Court of Appeal had occasion to review the issue of informer privilege and agreed that privilege extends to details that could narrow the pool of individuals who might be an informer so as to permit the accused to deduce his/her identity. In R. v. Omar (2007), 2007 ONCA 117, 84 O.R. (3d) 493 (C.A.), the court noted that “...even the smallest details may provide an accused person with all he or she needs to identify the informer...” The court quoted from the Leipert decision that a “detail as innocuous as the time of a 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”.
[22] In R. v. Barzal, 1993 867 (BC CA), [1993] B.C.J. No. 1812 (B.C.C.A.), the trial judge ordered the Crown to disclose source debriefing reports on a motion by the accused who sought the material for the purpose of testing the reliability of the informers on a challenge to the validity of the wiretap authorizations. On appeal, the British Columbia Court of Appeal held that the trial judge erred in ordering the disclosure. It reasoned as follows:
On a review of an authorization the trial judge is endeavouring to determine whether in the totality of the circumstances the authorizing judge could have concluded that the informants were sufficiently reliable to support a finding of reasonable and probable grounds. Subject to the existence of fraud, non-disclosure, or misleading evidence, none of which were alleged here, the indicia of reliability must be in the material before the authorizing judge. Otherwise the authorization cannot stand. It is reliability in this context which is relevant in respect to the validity of an authorization, not reliability at large.
In this case, the accused wanted access to the debriefing notes in order to test the reliability of the informers. A detailed inquiry into police files is not required for that purpose. Sufficient reliability is established, or is not established, by reference to the material filed in support of an application for an authorization. The right to make full answer and defence in this context is a right to the disclosure of material which had been before the authorizing judge. It is not a right to embark on a fishing expedition of all the material in the possession of the police. Such an enquiry could be endless, including access to police files, cross-examination of police officers, cross- examination of informants (which is not permitted; Garafoli at p. 1465), and consideration of the details of each case in which the informer had been involved. [Emphasis mine.]
[23] Two recent decisions of the Superior Court in Ontario are also instructive.
[24] In R. v. Ahmed et al,[^2] the applicants sought for an order compelling the disclosure of notes made by police handlers for 28 confidential sources to “ensure that the information allegedly provided by the 28 CSs is accurately reflected in the affidavit”. In R. v. Ali,[^3] the applicant sought disclosure of the notes kept by the handler of the confidential informant and the confidential informer file to “assist with cross-examining the affiant by uncovering yet unknown inaccuracies or omissions in the ITO”.
[25] Both applications were dismissed. Justice Trotter in Ali noted that a “request for the handler’s notes and the confidential informant file does not involve a straightforward application of the principles in R. v. Stinchcombe. ...”
[26] Justice MacDonnell in Ahmed explained “that where the defence is seeking a court order obliging the Crown to disclose material that was not before the authorizing judge, that the affiant did not rely on, and that is outside the borders of what is relevant for the trial itself, the defence has to do something more than demand the material. It must breathe life into the claim of relevance.” He went on to observe:
Because these requests for materials outside the investigative file are at the outer margins of even the ‘low’ Stinchcombe relevance standard, we believe that there is an onus on the defence to particularize and explain the relevance of such requests. The Crown must provide comprehensive disclosure of the investigative file because the investigative file is presumptively relevant. The materials beyond that file are not presumptively relevant unless the defence establishes a link.
Analysis
[27] What then is the basis that the applicant asserts justifies the disclosure of confidential informant’s files?
[28] In his notice of application to compel disclosure, the applicant asserts that “given the Crown’s implicit position that they are relying upon the reliability of the informants, counsel requests the complete file on each and every informant utilized in this investigation”. He also “intends to vigorously challenge the validity of the search warrants by way of Dawson and Garofoli applications at the respective stages of these proceedings”.
[29] In his information sworn in connection with the general search warrant, Officer Onslow deposed he obtained information personally or from other officers who had debriefing notes respecting interviews with confidential human sources. Officer Onslow deposes as follows:
On May 31st, 2012 I was assigned to assist with an investigation into Floriano DAPONTE trafficking in controlled drugs and substances from his property at 25674 Napier Road and the associated residence at 25684 Napier Road in the Township of Adelaide Metcalfe.
On June 2012 I met with Detective Constables Terry STREEFKERK and Jeff HARDIE who provided me with Source debriefing reports from Sources #1, #2 and #3. I have reviewed these reports and the information contained therein is detailed in the attached appendices.
Source #1 has provided information relating to DAPONTE trafficking in controlled substances from his residence at 25674 Napier Road and the associated residence at 25684 Napier Road in the Township of Adelaide Metcalfe. This information is detailed in appendix “B”.
14, Source #2 has provided information relating to DAPONTE trafficking in controlled substances from his residence at 25674 Napier Road and the associated residence at 25684 Napier Road in the Township of Adelaide Metcalfe. This information is detailed in appendix “C”.
Source #3 has provided information relating to DAPONTE trafficking in controlled substances from his residence at 25674 Napier Road and the associated residence at 25684 Napier Road in the Township of Adelaide Metcalfe. This information is detailed in appendix “D”.
On June 2012 I reviewed notes from a meeting I had participated in with Source #4. The information related to DAPONTE trafficking in controlled substances and stolen property from his residence at 25674 Napier Road and the associated residence at 25684 Napier Road in the Township of Adelaide Metcalfe. This information is detailed in appendix “E”.
Based on the information provided by the confidential informants listed herein, I believe that police will be able to conduct observation of the property and determine when the person(s) suspected of delivering controlled substances to DAPONTE has attended the property and delivered suspected controlled substances, when trafficking in CDSA is taking place, who is participating in these activities, and where controlled substances are being hidden on the property.
I have reviewed the Source information and found that the Sources corroborate the information provided by the others. Significant similarities include:
• that DAPONTE is selling cocaine, crack-cocaine and prescription narcotics from his residence on Napier Road.
• that the Sources know DAPONTE and they have purchased controlled substances from him.
• that DAPONTE hides the controlled substances in different locations around his property,
• that it appears that DAPONTE may bury the controlled substances to hide the and
• that the descriptions of the property at 25674 Napier Road, Adelaide Metcalfe Township are similar and consistent with past police investigations
On June 2012 I was provided information by Detective Sgt. Brad DURFY from Confidential Source #5 regarding CDSA activity at the DAPONTE property. I received further Source debriefing reports for Confidential Source #5 from Terry STREEFKERK on this date. This information is detailed in appendix “F”.
On July 2012 I received information from Detective Constable LONGDO. This information was obtained from confidential Source #6 and is detailed in the attached appendix “G”. I continued to receive information from LONGDO from this Source and added it to the appendix as it was received.
Information has been obtained from multiple confidential Sources with past proven records of providing information to police that specifically advise of first hand knowledge that Floyd DAPONTE is trafficking in controlled substances from his residence at 25674 Napier Road and the associated residence at 25684 Napier Road. Further they indicate that he has been doing so for some time and continues to do so to date. They indicate that DAPONTE maintains a large supply of controlled substances hidden on the property...
Request for Sealing Order
- I am also making application before Your Honour at this time requesting that an order be granted, sealing this Information to Obtain a Search Warrant, together with any copies of these warrants retained by the Court. This information ought not to be disclosed, as to do so at this time may jeopardize an ongoing police investigation. There are a limited number of persons who would possess the information as provided in the previous paragraphs. It is of great importance to society in the detection of Crime and Criminals and is particularly important in the prosecution of criminal offences that the identity of informers not be disclosed.
[30] The informants’ information is summarized in appendices to the affidavit. In each case, it is noted that the sources had previously provided information to police that has been found to be truthful and reliable; that the confidential source wishes to keep their identity unknown as “he or she fears retaliation on a personal level.” Certain information, subject to some redaction, is then set out. It is apparent from reading the appendices that the sources have been at the Napier properties and say they have observed the accused involved in drug transactions.
[31] In my view, the disclosure that has been made respecting the confidential sources is acceptable. Crown counsel (and the police) submit that the redactions that have been made are necessary to protect their identity. The court is not prepared to second guess the redactions, particularly bearing in mind the admonition that a court must be exceedingly cautious in ordering production at all and that informer privilege is to be scrupulously safeguarded. Furthermore, the informer files themselves were not before the authorizing justice. This request strikes me as the same one that was made in Barzal and refused.
[32] On the issue of the occurrence reports before, during and after the issuance and execution of the warrants, it is clear from the evidence (including the viva voce evidence at the hearing of the application of Sergeant Brad Durfy) that those reports exist outside the investigation at issue here and were not relied on by Officer Onslow in his affidavit in support of the warrant. Put another way, no vehicles were stopped during this investigation at the direction of the officers involved. That is not to say that there were not vehicle stops during this time but rather, if there were any, they were conducted independently of this investigation as part of routine police patrols in the area. This request seems to be similar to that made in Ahmed. Absent a particularized explanation of its relevance, it need not be disclosed. Like the informants’ files, they were not part of the information before the authorizing judge.
[33] Those occurrence reports that do relate to this investigation have been produced in a redacted form again to protect confidential sources.
[34] Similarly, officer notes have been redacted for valid reasons.
[35] With respect to any remaining outstanding disclosure, I am satisfied that substantial disclosure has been provided in a reasonably timely way, particularly bearing in mind the size of the investigation and the number of officers involved. I expect the balance will be produced well before the preliminary hearing.
[36] Given my conclusion that disclosure has proceeded in an acceptable fashion, it follows that there is no change in circumstance that justifies a modification to the terms of the accused’s release.
[37] The applications are dismissed.
“Justice H. A. Rady”
Justice H. A. Rady
Released: July 23, 2013
COURT FILE NO.: 11379
DATE: 20130723
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
FLORIANO DAPONTE
ruling
Rady J.
Released: July 23, 2013
[^1]: R. v. Stinchcombe, 1991 45 (SCC), [1991] S.C.J. No. 83
[^2]: Regina v. Ahmed et al, 2012 ONSC 4893, at para. 14
[^3]: Regina v. Ali, 2013 ONSC 2629, [2013] O.J. No. 2074 at para. 9