R. v. Merelles, 2014 ONSC 3902

ONTARIO SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-12-90000434-0000
DATE: 20140625

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Alberto Merelles
Defendant/Applicant

Kerry Benzakein, for the Respondent, Her Majesty the Queen
Anthony Moustacalis and T.S. Boutzouvis, for the Defendant/Applicant

HEARD: June 23, 2014

Low J. (Orally)

Ruling On Disclosure Application

1The indictment in his prosecution alleges several counts of possession of heroin and of cocaine for the purpose of trafficking and possession of currency obtained by crime.

2The defendant has brought an application for disclosure and an application challenging the validity of the search warrants relating to several locations, the executions of which disclosed a significant quantity of heroin and cocaine. I am asked to rule on the disclosure application first as the disclosure sought is for the purposes of advancing the application challenging the search warrant validity. Counsel for the applicant acknowledges that the disclosure is also sought for purposes of deciding whether or not there is a basis to launch an application for a stay on grounds of abuse of process.

3The applicant seeks:

1. The Toronto Police Service Protocol with respect to informants.

2. The protocol from the Toronto Police Service and from the Ontario Court of Justice for accessing judges or justices of the peace for search warrants for after-hours contact, and how the police obtain the home telephone numbers of judges

3. A “will say” statement of the police officers in this case setting out why they chose to have this warrant “executed” by Justice Lauren Marshall at her home, as opposed to following the regular procedure of attending during the day at the courthouse, or using the telewarrant process, whether they have used Justice Lauren Marshall on a regular basis or an ongoing basis to obtain search warrants and whether she has refused those warrants in the past.

4. Production of the informant file, if any, to the court for editing or review or submissions, or, if no file, then disclosure of the agreement with the alleged informant and other material relevant to the assessment of his or her credibility.

4This application is decided on first principles of the Crown’s disclosure obligations under Stinchcombe. In order to engage the disclosure obligation, material must be relevant, it must not be exempted on grounds of privilege, and it must be within the power and control of the Crown.

5Applicant’s counsel has fairly and frankly acknowledged that none of the items sought to be disclosed goes to full answer and defence. There is no relevance between the items sought to be disclosed and any possible issue on the merits. Indeed, counsel for applicant has acknowledged that there is no defence on the merits.

6The items sought to be disclosed are said to be relevant for purposes of enabling the defence to ascertain whether there is any basis for launching an allegation of abuse of process by way of judge shopping, and ascertaining whether there is any basis for alleging that the confidential informant was an agent of the police rather than an informant. In this regard, I have been referred to R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297 in support of the well established position that judge-shopping is objectionable. It is also said that the affidavit in the information to obtain is confusing in its use of the singular and the plural form of the noun “informant” and the applicant seeks to have the confidential informant file to challenge the affiant in that regard. Finally, it is said that the applicant seeks to allege that the confidential informant was a police agent and that accordingly, the informant privilege does not apply.

7The affidavit filed in support of the application is that of Robert Kraska, a student at law for defence counsel, and discloses no evidentiary basis for making the allegations of abuse of process by judge shopping or that the confidential informant was a police agent. The purpose of the application is to try to find some evidence upon which such an allegations could be made.

8In my view, the application is a fishing expedition that the court ought not to countenance. Permitting it to play out results in a serpentine detour from a determination of the prosecution on its merits, including any bona fide Charter challenge that the defendant has launched.

9I will begin with the request for an order requiring the Crown to produce the Toronto Police Service protocol with respect to informants.

10Procedures and processes relating to informants is one among a list of many that a police chief is required to make under Ontario Regulation 3/99, titled “ADEQUACY AND EFFECTIVENESS OF POLICE SERVICES”.

11The obligation on a police chief to establish processes and procedures for informants should be read in context of the whole section in which is found and in context of the whole regulation which is focused on quality of services and, to a somewhat lesser extent, labour-management issues. There is no legislated content of the procedures and processes to be established by police chiefs. More importantly, the procedures and processes established by police chiefs have no status either to diminish or to enhance the rights of accused persons, persons investigated, or others.

12Whether any particular informant is a confidential informant and thus engages the privilege attaching to that status depends not on whether and the extent to which a handler has obeyed the procedures and processes established by his chief but by the substance of the relationship. It depends on the condition of confidentiality sought by the informant and acceded to by the police in consideration of the conveyance of information. The condition of confidentiality is not diminished either by the fact of consideration given for information or by the fact that the consideration is in the form of money.

13Accordingly, the police chief’s procedures and processes relating to informants is irrelevant to whether an informant is a confidential informant or not.

14The Crown has indicated, in responding to the application that it is not in possession of the document in any case and that the Police Service does not agree to producing its protocol. It is said that the defence ought to have brought a third party disclosure application and that the Crown alerted defence to this some months ago. I agree with the Crown that this ought to have been brought as a third party disclosure application but given my view as to the absence of relevance, it is unnecessary to deal with that aspect of the matter further.

15The applicant seeks an order requiring the Crown to produce the informant file, if any, and seeks to have the court examine and redact it for production.

16The confidential informant file is privileged. There is no serious challenge to this. It would, in my view, be improper for the court to require production of the privileged document for submission to its own redaction. It is not for the court to parse out what material within a privileged document is sensitive and what is not. The whole confidential informant file is prima facie privileged.

17It is said that the nature of the agreement between the police and the confidential informant may furnish evidence that the informant lost his or her status as an informant and became a police agent. It is said that the affiant’s statement in the information to obtain that “The Informant is providing this information to the police for monetary reward” could be construed to mean that the police furnished money to the informant with which to purchase drugs from the defendant and to report on the purchase. The purpose of seeking disclosure of the agreement is to try to find some evidentiary support for that proposition.

18I do not agree that the statement reproduced above can reasonably be construed to mean that the police supplied the informant with buy money with which to purchase drugs from the defendant and thereafter to report the event. Further, such a scenario is objectively implausible.

19Second, since the prosecution does not involve trafficking, agency, as explained in R. v. G.B., 2000 16820 (ON CA), [2000] O.J. No. 2963 (C.A.) does not arise as the illegal conduct alleged in the indictment is possession. The offence does not involve a second party.

20Third, the applicant’s position that there might be something in the informant file that might suggest an agency relationship cannot abrogate the privilege. While it is the Crown that claims the privilege, the privilege is one that belongs equally, if not primarily, to the informant. Innocence at stake, the only exception to the privilege as set out in R. v. Leipert, 1997 367 (SCC), [1997] 1 S.C.R. 281 is not engaged here. In the event that the applicant is able to establish that the informant was not a confidential informant, then the privilege is lifted, but the applicant cannot put the cart before the horse. In my view, the prayer for disclosure of the informant file is an impermissible fishing expedition.

21I turn next to the prayer for disclosure of the protocol from the Toronto Police Service and from the Ontario Court of Justice for accessing judges or justice of the peace for the purpose of after-hours contact for search warrants. I will deal it together with the request for an order requiring a “will say” from police officers as to why they approached Justice Marshall at her home to have the search warrants issued. .

22It is said that the officer’s notes raise a suspicion of judge shopping as they do not set out any call to a judge’s contact number for access to the weekend rota judge in order to get instructions on how to contact the weekend judge or get the judge’s home number or in order to obtain permission to approach this judge as opposed to another.

23In my view, the court`s procedures relating to weekend duty judges and the will say sought from the police officers are irrelevant. There is no evidence of judge shopping.

24The fact that the officer’s notebook mentions, without more, that it is Judge Marshall who will review the material is unremarkable. The fact that the review is to take place at the judge’s home on a Saturday evening is also unremarkable. There is nothing surprising, untoward or suspicious in the fact that there is no mention in the officer`s notes of making a call to ascertain who the rota judge was or of the protocol followed for that purpose. It is not a detail of the investigation and how it came to be determined what judge would review the search warrant is not a matter that a police officer would have any need or reason to remember. The obtaining of search warrants is not an exceptional event. It is a mundane event. Nor is it an unusual event to meet with a judicial officer outside of the courthouse outside of business hours to meet the exigencies of court business. The court is where the judge is. During business hours it will be in the courthouse but outside business hours, it may be in a home or on a cottage dock. Every judge of the court has jurisdiction throughout the province and at all times.

25The issue before the court on the challenge to the validity of the warrants is whether there remains a basis for issuance of the search warrants based on the information as redacted and as amplified by any evidence on the application. It therefore matters not whether the judge who issued the search warrant was one who always issued, often issued, usually issued, or had never before issued search warrants. Because of the artificial circumstance created by redaction on the Garofoli application, the task of the reviewing judge is inevitably different from that of the issuing judge. Even if there were no redaction and the information to obtain is unamended and unamplified on the Charter application, the issuing history of the issuing judge was will be immaterial regardless.

26The disclosure application is therefore dismissed.

___________________________ Low J.