WARNING:
This judgment deals with informer privilege. To ensure that the identity of the informer is not disclosed, all references that may tend to disclose the informer’s identity have been removed and the original file of this court is sealed, subject to further court order.
DATE: 20150904
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
– and –
AB
Damien R. Frost and Mindy Caterina-Neufeld, for the Crown
Leora R. Shemesh, for the accused
REASONS
EDWARDS J.:
Overview
[1] It has long been recognized within the criminal justice system that informers have played an important role in the ability of the police to undertake the investigation and performance of their duties. This is particularly true in the drug trafficking underworld. Many informers provide information to the police for financial gain, while others provide important information for more altruistic reasons. Whatever the reason or motive, it has equally been well recognized that the position of an informer is precarious and their role fraught with danger.
[2] The relationship between a police informer and the police officer who handles the informer is a relationship built on trust. The informer must know that his/her identity will, almost without exception, be maintained confidential. Without such knowledge and trust the informer may be open to all kinds of retribution if his/her identity was revealed.
[3] This is a somewhat unique case. From my review of the jurisprudence there are few, if any, reported cases where the accused’s defence flows from his/her role as a confidential informant. While the evidence in this case suggests the accused was told by his/her police handler he/she could not commit criminal acts with impunity, it has been acknowledged in some of the reported cases that the commission of certain crimes is tolerated - apparently in the interest of a more effective justice system (see para. 73, R. v. Hiscock (1992) 1992 2959 (QC CA), R.J.Q. 895). That said, it cannot be the case where an accused commits a crime for personal gain and quite independent of his/her role as a CI that he/she can turn around and invoke CI privilege to avoid prosecution and a possible finding of guilt. The privilege that attaches to the role of being a CI cannot be used as a license to commit a crime with impunity. This case highlights the possible conflict between the role of a CI as both an informant and a CI as an accused.
[4] The accused, AB, is charged with some of the most serious drug related offences under the Controlled Drugs and Substances Act. AB had been a confidential informant with the Z Police Service (“ABCPF”) for a number of years prior to his/her arrest. He/she had been deemed a reliable informant. His/her defence and an abuse of process application arise out of his/her role as a confidential informant. It is because of this that throughout these Reasons I will be using pseudonyms for all of the individuals who played any role in the evidence as it unfolded during the trial. It is for the same reason that these Reasons will not identify when or where the events transpired, nor will my Reasons identify the type of drug involved. The trial, in its entirety, was held in camera. My Reasons will also refer to AB as he/she so as not to reveal his/her sex and thereby further protect his/her identity. Only in this way can AB’s identity as a confidential informant be protected. An unedited version of my Reasons disclosing the names of all of the witnesses and his/her related information will be given to counsel and one copy will be filed with the court that will be sealed, to be opened only by order of this Court. The version of these Reasons that becomes public will have been reviewed with counsel to ensure that AB’s identity has been fully protected.
Overview of the Evidence
[5] AB is a father or mother and had been, up to the time the charges which are before this court, a known user of drugs. There is nothing in the evidence, however, to suggest that he/she had any history of being involved in the more serious end of the drug sub-culture such as trafficking or importing drugs. The only evidence with respect to AB and drugs was his/her actual use of drugs.
[6] The ABCPF was involved in the investigation that resulted in the charges against AB. The ABCPF has a written policy (“the policy”) that governs how its members are supposed to handle a confidential informant. The policy was marked as Exhibit 6. The definition of a Confidential Human Source (“CHS”) is as follows:
Confidential Human Source (CHS) – a person who is registered with the Intelligence Unit, and voluntarily provides information of some usefulness or interest to the ABCPF with respect to criminal activity, with the explicit or implicit expectation of confidentiality. Once a CHS is registered, the Officer in Charge of the Intelligence Unit assigns a number that will be used to protect the identity of the CHS.
[7] For some time prior to these charges, AB had been providing information to the ABCPF. He/she had been registered as a “Confidential Human Source” since some time in the first decade of 2000. A confidential human source, as noted above, is another way of describing a confidential informant, pursuant to the policy that the ABCPF has with respect to confidential informants. Throughout these Reasons I may refer to a confidential informant as “CI”.
[8] According to the evidence of AB, he/she had been paid approximately three times by the ABCPF for information that he/she had supplied. Approximately eight days prior to his/her arrest, he/she had been paid a sizeable amount of money for reliable information that had led to the arrest of someone known as XY who was charged with possession of illicit drugs for the purposes of trafficking. The drugs seized as a result of that arrest had a significant street value. The police officers who had been his/her handler, prior to his/her arrest, acknowledged in their evidence that he/she was a reliable informant.
[9] The policy definition of a CHS makes very clear that a confidential informant registered with the ABCPF has an expectation of confidentiality, which is a reflection of all of the jurisprudence dealing with confidential informants.
[10] The policy goes on to acknowledge that the ABCPF “bears distinct responsibilities in the care and handling of the CHS”. The policy provides each confidential informant with a number, and assigns the responsibility for the handling of the confidential informant to one police officer who has responsibility for handling and controlling the confidential informant. I will refer to this police officer as the handler.
[11] The handler is required by the terms of the policy to document, in writing, every interaction with the confidential informant on a control sheet, which is then filed in a file maintained for the confidential informant by a more senior police officer known as the CHS Coordinator. The policy imposes on the Coordinator an obligation to maintain strict control of all CHS identification and security, as well as all control sheets.
[12] The handler also has very specific duties laid out in the policy, one of which is to “protect the identity of a CHS, except when the administration of justice requires otherwise”. This obligation is consistent with the definition of Informer Privilege found in the policy, which provides:
The Supreme Court of Canada has affirmed the existence of the Police Informer Privilege. That privilege is not absolute. Informer Privilege can be overridden by the Trial Judge in circumstances where disclosure of the Informer’s identity could help show that the defendant was innocent of the crime.
[13] In essence, the jurisprudence makes very clear that informer privilege is absolute, save and except for what is known as the innocence at stake exception.
[14] Amongst the various responsibilities assigned to the CHS Coordinator is the duty to restrict access to a file of a confidential informant to a very limited number of senior police officers. The only officers of the ABCPF who have access to a confidential informant’s file, besides the Coordinator is the Chief of Police, Deputy Chief of Police, C.I.D. Inspector and a Detective Sergeant. Implicit in this responsibility is a recognition that only a very few police officers will ever have the ability to directly know whether someone is a confidential informant. This, of course, makes very good sense. The greater the number of police officers with knowledge that someone is a confidential informant, the greater the risk of inadvertent disclosure of someone’s confidential informant status to someone who might be intent on harming the confidential informant.
[15] Some time prior to when he/she had supplied information to his/her handler that led to the arrest of XY, and thus prior to his/her arrest, AB had been contacted by a known drug dealer from whom he/she had previously purchased illicit drugs. This person, referred to in the trial as EF, had contacted AB asking him/her to accept something coming in the mail from outside Canada. I will refer to this “something” throughout as “the something”. Previously, AB had hidden some drugs for EF at his/her residence for a few days, which he ultimately retrieved from him/her. AB did not disclose this information to his/her handler.
[16] After AB had agreed to accept the something he/she began receiving telephone calls from someone known as ST, who he/she testified he/she understood to be related in some way to EF. The initial telephone call from ST was to enquire as to whether the something had arrived. Later AB began to receive more frequent telephone calls from ST, the purpose of which calls was to determine again whether the something had arrived.
[17] With the frequency of the telephone calls from ST, AB began to have his/her suspicions about what was actually in the something so he/she contacted his/her handler, Officer W (“W”). The purpose of the telephone call to W was to let him know that a something was coming and to enquire as to what he/she should do. AB testified that he/she made three calls to W. None of the calls were successful in his/her making direct contact with him.
[18] On a date approximately a month before his/her arrest, the something was mailed to AB from outside Canada. The Canada Border Services Agency (“the CBSA”) discovered the illicit drugs approximately a week after the something was mailed. Approximately two weeks thereafter, the RCMP informed the ABCPF Drug Enforcement Unit about the illicit drugs in the something. Sergeant T (“T”), the Officer in Charge of the ABCPF Intelligence Unit, was also overseeing the Drug Enforcement Unit on that date. T tasked Officer M (“M”) with being the Officer in Charge of the investigation of the something. It was decided that the something would be delivered to AB by a “controlled delivery” by a police officer, posing as Canada Post mailman. Because ABCPF was not authorized to engage in controlled deliveries, it sought the assistance of the Ontario Provincial Police (“O.P.P.”). The evidence at trial included the telephone records of W. These records largely corroborated AB’s evidence in terms of his/her attempts to contact W. W also confirmed in his testimony that he had received a voicemail message from AB a few days prior to the controlled delivery, to the effect that he/she “needed help with a situation”.
[19] What AB did not know when he/she left the message for W, was that the something that AB thought was coming from outside Canada had in fact been intercepted by the CBSA and turned over to the RCMP. The something was addressed to AB at his/her address in Z, and was shown to have emanated from somewhere outside of Canada other than where he/she thought it was coming from.
[20] Armed with this information the ABCPF arranged for what is known as a controlled delivery to AB at his/her residence, utilizing the services of a police officer from the O.P.P. disguised as a Canada Post worker. The controlled delivery was to have taken place on day 1, but did not actually occur until day 2.
[21] The officer in charge of the investigation was Officer M. M knew that AB was a confidential informant but was not his/her handler. AB’s handler, Officer W, had received instructions from Sergeant T approximately five or six days prior to his/her arrest to have no contact with AB pending the delivery of the something. Sergeant T also testified that he had temporarily suspended AB’s status as a CI. It was for this reason that W did not return AB’s voicemail when he/she sought guidance with respect to the something. It is worth noting that at no time was AB advised that his/her status as a CI had been temporarily suspended. There is also nothing in his/her CI file that confirms his/her status was temporarily suspended, nor anything to reflect that he/she was reinstated.
[22] With the knowledge that the something contained illicit drugs and was to be delivered to AB’s address, the ABCPF sought and obtained a search warrant. There were a number of police officers involved in the execution of the search warrant, two of whom were AB’s former and present handlers, Officers G and W.
[23] The something was delivered on day 2 by an O.P.P. officer disguised as a postal worker who had AB sign for the something. When he/she re-entered his/her residence after signing for the something, AB opened the something but did not disturb the illicit drugs. He/she conducted a cursory examination of the something contents and placed them in his/her fridge. According to AB, he/she then contacted ST to indicate that the something had arrived and arrangements were made for AB to meet with ST later that evening. Shortly after putting the something in his/her fridge, the ABCPF executed the search warrant and AB was arrested.
[24] Prior to the execution of the search warrant and the controlled delivery, the police officers that were to be involved in the execution of the warrant participated in a briefing. There is a dispute in the evidence of the police officers who testified at trial as to what knowledge, if any, was communicated to the investigative team concerning AB’s status as a confidential informant. M testified that he told Officers H and S that AB was a confidential informant. H and S denied that they were told this by M, although they did surmise as things unfolded that AB may have been a confidential informant. H and S were later tasked with interviewing AB at the Z Police Station after his/her arrest.
[25] Officers G and W, who had been or were his/her handler, participated in the arrest at his/her residence. Sergeant T, who was the person designated to maintain control over all confidential informant records including those of AB, and who had also approved the sizeable payment to AB only a few days prior to his/her arrest, was also involved in the search at AB’s residence.
[26] After his/her arrest, AB was taken to the Z Police Station where he/she participated in two distinct interviews. The first was in his/her capacity as an accused, when he/she was given the usual police caution and was then interrogated by H and S in a video interview. H and S did the interview knowing very little about the police investigation to that point. They were apparently selected to do the interview as neither had acted as AB’s handler in the past.
[27] Having been formally interviewed by S and H, AB was then turned over to Officers M and W who were intent on interviewing him/her off the record in his/her capacity as a confidential informant. The purpose of this interview was to obtain more information about who the final intended recipient of the something actually was. Implicit in this purpose can be inferred that the ABCPF did not believe that AB was the final intended recipient of the illicit drugs contained in the something.
[28] During the interview of AB conducted by M, in his/her capacity as a confidential informant, AB not only identified EF and ST as the two persons to whom the something would likely have ended up, but he/she also picked these two individuals out from a form of a police photo line-up (Exhibit 7). AB advised M that he/she was supposed to meet ST in the area of a store on a main street in Z.
[29] Somewhat remarkably, despite having been charged with some of the most serious drug offences under the Controlled Drugs and Substances Act, and despite the fact the seizure of the illicit drugs was considered a very large drug bust for the ABCPF, AB was not detained for a bail hearing. Rather, later that evening, he/she was released on a promise to appear with no conditions.
[30] AB was released with the clear understanding on the part of M that he/she would be meeting ST later that evening. Significantly, Sergeant T, M’s superior officer, did not know of the plan to release AB to meet ST. Sergeant T conceded in his testimony that this plan was not only one that he did not know about, but also was a plan that could potentially have jeopardized AB’s safety. Sergeant T, remarkably, only found out about this during the course of the trial and conceded in his evidence that had he known he would have said that it was not a good idea.
[31] After his/her release AB testified that he/she did in fact did meet with ST, and according to his/her evidence he/she told ST about his/her arrest and the seizure of the illicit drugs by the ABCPF. He/she received some illicit drugs for his/her efforts and then went home. He/she reported these events to M, and for reasons that remain unexplained there appears to have been nothing done by the ABCPF with respect to the information that AB gave to M concerning EF and ST; this despite the fact that AB had been previously deemed a credible and reliable informant.
[32] What is also somewhat remarkable from the evidence is that despite the fact AB had been arrested on very serious drug charges, he/she was not decommissioned as a registered confidential informant with the ABCPF until much later in 2011.
[33] As to the reasons why AB was decommissioned as a confidential informant, the evidence suggests that this happened not so much because he/she now was an accused drug trafficker, but rather due to concerns related to his/her formal police video interview on day 2 post-arrest. There had been concerns on the part of both M and W that AB might divulge his/her status as a confidential informant when he/she was being interviewed on video. This, in part, explains why H and S were used to do the interview as they had not been his/her handler. With the interview complete, some of the concerns about AB divulging his/her status as a confidential informant became a real concern, and efforts were then made at the behest of the federal Crown prosecutor then assigned to the file (not Mr. Frost) to retrieve the video from AB.
[34] Officer G was tasked with the job of meeting with AB in order to obtain the video that had been disclosed to his/her then defence counsel as part of the Crown’s disclosure obligations. Prior to meeting with AB, G was given a written set of questions to ask AB that had been drafted by the federal prosecutor.
[35] Up to this point in time, late in the year he/she was arrested and released, when the federal prosecutor appears to have had concerns that AB may have revealed his/her identity as a confidential informant during his/her video interview, AB would have been appearing when required to do so in court, in Z, not under a pseudonym (as he/she did throughout this trial), but with his/her real name disclosed. As such, anyone reviewing a court docket in that time period would have seen the real name of AB charged with various serious drug offences. G conceded that both the federal Crown prosecutor and the ABCPF believed that AB’s identity as a confidential informant had been revealed, and that there were concerns about civil liability and concerns for his/her safety.
Position of the Crown on the Substantive Charges
[36] With the Agreed Statement of Facts which establish identity, jurisdiction, the nature of the substance; and all of the other facts necessary to establish a conviction, the Crown argues that the only remaining element that the Crown has to prove on all three counts is that AB had the requisite knowledge concerning the contents of the something and/or that he/she was wilfully blind as to the contents of the something. The Crown argues that there is a substantial body of evidence from which this court can infer AB’s knowledge with respect to the something, and/or infer that he/she was wilfully blind with respect to the contents of the something.
[37] As to the credibility of AB’s story with respect to his/her knowledge, the Crown argues that AB had previously taken on the role of holding drugs for EF, and that he/she had never disclosed to his/her handler that on a prior occasion he/she had assisted EF. If AB was fulfilling his/her role as a confidential informant, he/she would have disclosed to his/her handler this prior occasion. The fact that he/she did not, should leave this court with concerns as to whether he/she would have disclosed to his/her handler his/her role with respect to the particular something in question now before this court.
[38] As to AB’s evidence with respect to the suspicions that he/she ultimately testified to, after he/she had accepted his/her role in receiving the something on behalf of EF, the Crown argues that his/her evidence in that regard is not credible. As well, it is suggested by the Crown that the evidence of AB with respect to his/her suspicion that the something may have contained marijuana establishes that he/she knew that the something contained a prohibited drug, even if his/her knowledge did not extend to the fact that the prohibited drug was illicit drugs.
[39] As to the events after he/she actually received the something from the undercover O.P.P. officer, the Crown argues that his/her actions were not the actions of someone receiving a something but, rather, the suspicious actions of someone in receipt of illegal drugs.
[40] Specifically, with respect to his/her actions post-delivery, the Crown argues that his/her evidence with respect to the cutting off of the portion of the something with the address and the placing of the something in the fridge clearly establishes that AB knew that the something did not contain something innocuous but rather contained illegal drugs.
[41] Up to the time that the something was actually delivered, the Crown suggests that if AB had truly harboured suspicions with respect to the actual contents of the something he/she would have done more to have disclosed his/her suspicions to his/her handler. The Crown notes that between the time when the something was sent to when the something was actually delivered, AB had a number of encounters with his/her handler, at which point he/she could have specifically raised his/her suspicions. In that regard, the Crown takes note of the fact that AB did not mention the something approximately three weeks prior to the controlled delivery when he/she provided detailed information about XY to Officer W, nor did he/she provide this information a few days later when he/she called Officer W to inform him that he/she had just left R Street after purchasing crack illicit drugs from someone he/she identified as NP.
[42] As well, it is noted that AB could have raised his/her suspicions with Officer W during the morning five days prior to his/her arrest, when he/she had asked to meet Officer W, a meeting that did not take place because Officer W did not have a second officer available. The Crown argues that AB did not take advantage of these occasions to discuss the concerns that he/she had with respect to the something because he/she was, “protecting the lucrative relationship that he/she had with EF and making his/herself extra money by providing information regarding other dealers to the police”. (See para. 37 of the Crown’s written submissions)
[43] As to AB’s credibility, the Crown points to many aspects of AB’s evidence. One example of his/her lack of credibility, emphasized by the Crown in its written submissions, relates to AB’s evidence with respect to the markings on the waybill of the something, establishing that the something came from location X outside Canada as opposed to location Y outside Canada. It is suggested in the Crown’s written submissions that the refusal of AB to acknowledge that he/she saw the bold blue location Y title accented by bright orange on the waybill undermines AB’s story with respect to his/her belief that the something was coming from location X.
[44] Fundamentally, the Crown argues that the requisite knowledge to establish a conviction can be inferred from the circumstances of this case, specifically as follows:
(a) AB signed for and received the something;
(b) It was found in his/her residence, partially opened inside his/her fridge, three digital S were located in his/her residence, and the illicit drugs at its lowest range was worth a substantial amount of money.
[45] D.C. B, in his Expert’s Report filed as evidence in this case states in his opinion, that AB possessed all of the components found in relation to mid to high level drug dealers, established in part by the quantity of digital scales found in his/her residence.
[46] The Crown also fundamentally argues that with AB’s evidence that he/she had suspicions that there was marijuana in the something before it arrived, this establishes AB had the requisite knowledge. If the evidence of AB with respect to his/her suspicions is accepted, this establishes on the Crown’s theory of the case that AB was wilfully blind and did not make any inquiries with those who actually knew about the something, i.e. EF and ST, about its true contents. If in fact AB had wanted to contact his/her handler because of his/her concerns, he/she had ample opportunity to do so and never did because his/her true intention was to financially profit from his/her role with respect to the something and its contents.
Position of AB on the Substantive Charges
[47] Counsel for AB argues that the Crown has failed to satisfy its onus and that the evidence against AB does not rise in any way, shape or form to the level of beyond a reasonable doubt. Counsel for AB characterizes AB as a naïve, fragile and vulnerable person who was working for the ABCPF. During the time that he/she was working for the ABCPF as a confidential informant he/she had been using drugs, developing relationships with drug dealers and providing information to the ABCPF in exchange for financial compensation. With the contacts that he/she had with his/her handler, AB was developing a trust relationship so that he/she could provide meaningful information for which he/she would ultimately be paid.
[48] Counsel for AB refers to the various contact records that were filed as Exhibit 3 to establish that he/she had in fact, in the past, provided meaningful information to the ABCPF for which he/she had been deemed a reliable, confidential informant. Amongst that information was information concerning EF. As to the relationship that he/she had developed with EF, counsel for AB points to the fact that AB had even invited him into his/home in an effort to foster the trust necessary to be developed between him/her and EF. It is noted that AB did not disclose this information to his/her handler.
[49] With respect to the prior occasion when AB had held on to drugs for EF, it is argued this was never disclosed to his/her handler, again for reasons of establishing a trustworthy relationship with EF. Put differently, in order to foster and further a relationship of trust, AB was not going to disclose every criminal act of which he/she had knowledge concerning ST and EF.
[50] As to the actual delivery of the something and his/her suspicions, counsel for AB points to the fact that AB testified that while he/she did have suspicions, he/she had made reasonable efforts to contact his/her handler on three separate occasions. He/she had left a voicemail message for Officer W prior to day 2, and again on day 2 he/she testified he/she unsuccessfully attempted to contact Officer W.
[51] As to what AB did on day 1, it is argued on his/her behalf, that they are not the actions of someone expecting a sizeable quantity of illicit drugs. AB was home when the first attempted delivery took place on day 1 and he/she did not respond to the knocking on the door. If in fact AB was expecting a sizeable quantity of illicit drugs, it is argued on behalf of AB that he/she would have immediately responded to the knocking on his/her door.
[52] With respect to the actions of AB when the something was delivered on day 2, these actions again are argued as not reflective of someone who was receiving the something of illicit drugs. If in fact AB did know that he/she had received the something of illicit drugs, it is argued that he/she would have made immediate contact with ST and/or EF and made arrangements for the something to be delivered. This never happened as AB was arrested before he/she could meet with ST. Rather, AB testified that it was his/her intention to go to work and upon his/her return arrange for the pick-up and delivery of the something that he/she still believed was something.
[53] It is noted that once the something was opened by AB and placed in the fridge, he/she never disturbed that part of the something that contained the placebo illicit drugs. If in fact AB knew that the something contained illicit drugs, it is argued on his/her behalf that with his/her prior history of drug abuse there may very well have been a temptation for his/her to have used some of the drugs. That did not take place, again evidencing the actions of someone who was not in receipt of illicit drugs.
[54] Counsel for AB defines the issue before this court as whether AB knew that the something delivered to his/her residence, and imported from abroad, was indeed illicit drugs, and/or that he/she was wilfully blind to this state of affairs. For wilful blindness to be established counsel for AB argues that the Crown must prove that the failure to inquire was motivated or informed by a desire to avoid the truth, or knowledge on the part of the accused that avoiding an inquiry would shield his/her eyes and ears from the guilty truth. See R. v. Lagace, 2003 30886 (ON CA), 2003, O.J. 4328.
[55] Counsel for AB argues that he/she did not have the requisite knowledge that the something that he/she received, and placed in his/her fridge, was or could have been illicit drugs. Given his/her history of having co-operated with the police in the past as a reliable confidential informant, it is suggested on AB’s behalf that it makes no sense that he/she would not in fact have disclosed that he/she was expecting to receive a something of illicit drugs. He/she had already been paid a substantial amount of money with respect to information that he/she had supplied concerning illicit drugs, and by inference it is suggested that he/she would likely have received a substantially higher payment from the ABCPF had he/she been able to discuss with Officer W his/her concerns with respect to the something.
Analysis Regarding the Substantive Charges
[56] My analysis of the evidence must begin with the fundamental proposition that AB is deemed to be innocent of all of the charges unless the Crown proves beyond a reasonable doubt that AB knew, or he/she was willfully blind that the something delivered to his/her home on day 2 contained illicit drugs. If I accept the evidence of AB, that is the end of the matter. Even if I do not believe the evidence of AB but I am left with a reasonable doubt about his/her guilt, or that I have a reasonable doubt about the state of his/her knowledge concerning the contents of the something, I must enter an acquittal on all charges. Even if AB’s evidence does not leave me with a reasonable doubt about the state of his/her knowledge of the contents of the something, I can only find AB guilty if the rest of the evidence that I do accept proves AB’s guilt beyond a reasonable doubt.
[57] As a witness I found AB to be a forthright and credible person. While his/her story about the something clearly is suspicious, there are too many unanswered questions for this court to find him/her guilty. AB was clearly someone familiar with the drug culture in Z. He/she was a user and abuser of illicit drugs. He/she knew who some of the so-called players were and appears to have ingratiated his/herself with the drug underworld to the point where he/she had been accepted as someone “the bad guys” could trust. With that trust he/she was able to then become a trusted and reliable confidential informant for the ABCPF. He/she made money from his/her role as an informant. While he/she was an abuser and user of illicit drugs there was nothing in the evidence, other than the actual delivery of the something, to suggest he/she had any history of being, or becoming, a higher level member of the illicit drug culture in Z.
[58] This court heard evidence that the seizure of the illicit drugs was considered a large drug bust in Z. There was some suggestion it may, as of day 2, have been the largest ever drug bust in Z. The actions of the police after his/her arrest, in releasing him/her on a promise to appear, are not reflective of the seriousness of the charges and magnitude of the drug bust. The actions of Officers M and W in releasing him/her with the clear intent that he/she would meet with the person to whom the drugs were truly destined, demonstrates that in the minds of at least some of the officers involved in this drug investigation that they did not believe he/she was the final recipient of the illicit drugs and, thus, did not believe he/she knew the something contained illicit drugs when it was delivered to his/her residence.
[59] Crown counsel argues that the evidence in this case allows the Court to infer that AB had the requisite knowledge to warrant a conviction. The Crown suggests the following passage in R. v. To, 1992 913 (BC CA), [1992] BCJ No. 1700 (paras. 38 and 39), should be determinative of how this court should analyze AB’s evidence:
Thus it seems to me, with respect, that it is legitimate to infer knowledge from mere physical possession in proper circumstances which inference will be displaced if an explanation is offered which raises a reasonable doubt or if, as in Hess, other inferences consistent with innocence may be drawn from all of the proven circumstances. It is this rational process which distinguishes inference from speculation or conjecture. At the end of the case, of course, the Crown must prove the guilt of the accused beyond a reasonable doubt, but once that was done, on the circumstances of this case, the burden of adducing an explanation that raises a reasonable doubt, or of extracting reasonable doubt from the evidence, rested upon the accused.
The total rejection of the evidence of the accused is tantamount to the accused having given no evidence or offered no explanation, and it then becomes necessary to consider whether, on all of the evidence, an inference of knowledge may be drawn from the proven facts, or whether, in all the circumstances, a fair consideration of the evidence either leaves the S in even balance or tilts one way or the other.
During the course of his Reasons in To, supra, Chief Justice McEachern discussed the difference between legitimate inference and conjecture or speculation, and how the Courts had struggled with this problem where the accused adduces evidence that he/she didn’t know what was in the something when it is seized by the police. Ultimately, the following passage at para. 34 is of assistance to this court in how to analyze the evidence of AB:
….when the Crown’s case establishes physical possession, it may become incumbent upon the accused to set up a defence of lack of mens rea or some other defence such as lack of knowledge of what is physically possessed. He also pointed out that the degree of onus of proof of lack of mens rea (or knowledge) then resting upon the accused is not one pointing to conclusiveness beyond a reasonable doubt, but is sufficient if the balance of probabilities lies in his favour. This is often described as an onus not of proof, but it is really an onus of adducing evidence without which it may be that the Crown has proven its case beyond a reasonable doubt.
[60] The facts in To are markedly different from the facts involving AB. In To, the accused was found in possession of a plastic bag containing a large quantity of heroin, having a wholesale value of $1.35 million and a retail or street value of close to $12 million. The accused offered an explanation that was rejected by the trial judge in what was described as brief reasons.
[61] On appeal, the explanation of the accused was rejected largely because the explanation defied credulity. At para. 40 of his Reasons, McEachern C.J. B.C. emphasized the suspicious circumstances and the immense quantity and value of the drugs which made it highly unlikely that they would be entrusted to someone who didn’t know what was in the bag.
[62] Applying the reasoning quoted above, one could begin with inferring knowledge from the mere physical possession that AB knew that what was delivered to him/her was a something of illicit drugs and not something perfectly innocuous and legal. This inference will not be displaced unless AB adduces evidence that raises a reasonable doubt. Having found AB a credible witness I am satisfied that his/her suspicion did not, and cannot, amount to knowledge of what was contained in the something. There can be no doubt that some might find his/her explanation as very convenient and one made up after the fact to avoid a lengthy prison sentence. That said, however, there is evidence to corroborate his/her story.
[63] If there was nothing in the telephone records of Officer W to confirm the attempts made to contact his/her handler, this court would have to seriously question the truthfulness of AB. The fact remains that W confirmed his/her attempts and that he had received a voicemail message from him/her in which he/she wanted to discuss a “situation”. AB clearly had suspicions about what was in the something, and in my view demonstrated his/her good faith role as a CI by trying to get help from his/her handler. These are not the actions of someone with a guilty mind, but rather the actions of someone who sought help and would, as he/she demonstrated post-arrest, have assisted the police in ultimately bringing to justice those to whom the drugs were truly destined. The same line of reasoning applies to the suggestion AB was willfully blind. Again, if there was no evidence that AB sought the assistance of his/her handler, it would have been a much more difficult argument for AB to make that he/she didn’t know or he/she was not willfully blind as to what was in the something.
[64] Fundamentally, I have accepted the evidence of AB. His/her evidence that he/she didn’t know the something contained illicit drugs but did have suspicions that it might contain marijuana also does not lead to a finding of guilt. The Crown is quite correct in pointing out that the Crown does not have to establish AB knew there were the drugs specified in the Indictment, provided it is established he/she knew it contained a prohibited drug – see R. v. To, supra, at para. 16 and R. v. Williams (2009) ONCA 342 at para. 19. The evidence that I have accepted, that his/her suspicions had caused him/her to seek out the help of his/her handler, refutes the necessary guilty mind to establish proof beyond a reasonable doubt that AB knew or was wilfully blind that the something contained a prohibited drug.
[65] The Crown has not met the onus of establishing beyond a reasonable doubt that AB knew or was wilfully blind as to the contents of the something containing illicit drugs or a prohibited drug. There will be an acquittal on all charges.
AB’S Motion Seeking a Stay Based on Alleged Abuse of Process
[66] If I am wrong entering an acquittal on all charges, I feel compelled to still deal with AB’s motion seeking a stay of the charges on the basis of an alleged abuse of process.
[67] Ms. Shemesh on behalf of AB, brought an application to stay the proceedings on the basis of an abuse of process, based on a violation of AB’s section 7 Charter rights. It is suggested that AB’s identity, and status as a confidential informant and the privilege that attaches to that status, was not protected by the ABCPF. Subsequent to his/her arrest, it is argued that his/her section 7 Charter rights were violated as a result of the ABCPF, requiring that he/she participate in his/her own investigation after which he/she was prosecuted.
[68] The aforementioned conduct, it is submitted, was so egregious it violates fundamental principles of justice which underlies the community’s sense of fair play and decency.
[69] There are two categories of cases when a stay of proceedings for an abuse of process is warranted. The first category is where the State conduct compromises the fairness of an accused’s trial. What is often referred to as the residual category, is a situation where State conduct has not created any threat to the trial process but risks undermining the integrity of the judicial process. In this residual category it is the undermining of the fundamental justice of the system which engages section 7 of the Charter of Rights, see R. v. Piccirilli, Harvey Babos, 2014 SCC 16 at para. 31, and R. v. Regan, 2002 SCC 12 at para. 55.
[70] In one of the leading cases from the Supreme Court of Canada dealing with applications seeking a stay based on a violation of Charter rights, Justice L’Heureux-Dube in R. v. O’Connor, 1995 51 (SCC), 1995 4 S.C.R. 411, acknowledged that where there has been a violation of a right under the Charter, section 24(1) confers upon a court of competent jurisdiction the power to confer “such remedy as the court considers appropriate and just in the circumstances”. Justice L’Heureux-Dube went on to suggest that two criteria must be satisfied for a stay to be granted pursuant to section 24(1). These two criteria are as follows: 1) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial or by its outcome; and 2) no other remedy is reasonably capable of removing that prejudice.
[71] The residual category of cases for which a stay of proceedings may be considered an appropriate remedy was considered by the Supreme Court of Canada in R. v. Canada (Minister of Citizenship and Immigration) v. Tobias, 1997 Carswell 138 (SCC). In Tobias the Supreme Court recognized that where, after considering the first and second criteria there is uncertainty whether a stay is warranted, the court must balance the interest that would be served by the granting of the stay of proceedings against the interest that society has in having a final decision on the merits.
[72] With respect to the residual category and the balancing of the interests at play, Justice Moldaver in R. v. Piccirilli, 2014 SCC 16, at para. 32 further elaborates on the test as follows:
The test used to determine whether a stay of proceedings is warranted is the same for both categories and consists of three requirements:
There must be prejudice to the accused’s right to a fair trial over the integrity of the justice system that ‘will be manifested, perpetuated or aggravated through the conduct of the trial or by its outcome’. (Regan, at para. 54);
There must be no alternative remedy capable of redressing the prejudice; and
Where there is still uncertainty if a stay is warranted after steps one and two, the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against “the interest that society has in having a final decision on the merits”.
[73] Justice Moldaver in Piccirilli goes on at para. 35 to state:
By contrast, when the residual category is invoked, the question is whether the State has engaged in conduct that is offensive to societal notions of fair play and decency and whether proceeding with a trial in the fact of that conduct would be harmful to the integrity of the justice system. To put it in simpler terms, there are limits on the type of conduct society will tolerate in the prosecution of offences. At times, State conduct will be so troublesome that having a trial – even a fair one – will leave the impression that the justice system condones conduct that offends society’s sense of fair play and decency. This harms the integrity of the justice system. In these kinds of cases the first stage of the test is met.
[74] There is no doubt from a review of the jurisprudence that it is fair to say that the granting of a stay of proceedings is a drastic remedy, and a remedy that should be reserved for only the “clearest of cases”, especially when the residual category is engaged - see Justice Moldaver in Piccirilli, supra, at para. 68. In some situations an accused may, if a stay of proceedings is entered, realize a windfall. Perhaps for this reason it is recognized that an accused seeking a stay of proceedings has an onerous burden before the court will grant a remedy which is exceptional and rare.
[75] While the granting of a stay of proceedings is an exceptional and rare remedy, there are cases where the misconduct on which the stay of proceedings is granted is such that the court considers the mere fact of going forward will be offensive. Where an accused is a confidential informant, everyone associated with the administration of justice has an obligation to protect the privilege attaching to the informer’s identity. Where there is evidence that this protection has been violated, whether wilfully or otherwise, a stay of proceedings may be an appropriate remedy.
[76] While the facts in R. v. X.Y., 2011 ONCA 259, are different from the facts before this court, it is quite clear that the Crown has no right to disclose an informer’s identity without the informer’s consent. In X.Y, the accused invoked an alleged breach of informer privilege as the basis upon which to stay a conviction entered at the end of trial.
[77] In X.Y., the accused was being interviewed by the police post-arrest and at one point asked that the recording device be turned off. After being assured that it had been turned off the accused then entered into confidential discussions which related to various activities of the accused as an informer.
[78] At the completion of the interview the recording disc was transcribed and, ultimately, provided to the prosecutor for disclosure to defence counsel. There is nothing to suggest that attempts were made to ensure that the confidential portion of the interview was not transcribed.
[79] When disclosure was made to the various defence counsel involved, a full transcript of the accused’s interview was disclosed, including that portion which identified the accused as a confidential informant. The trial judge dismissed the accused’s pre-trial motion to stay proceedings on the basis of an abuse of process, characterizing the conduct of the police and prosecution in disclosing the full interview as inadvertent and unintentional.
[80] It is beyond dispute that there is a duty on both the police and the prosecution to ensure that a confidential informant’s identity is kept confidential. With that in mind, the Court of Appeal in X.Y. considered that the trial judge had erred in failing to enter a stay of proceedings, identifying the following errors as: 1) concluding that to permit the prosecution to continue would not further prejudice the appellant; 2) failing to properly consider the effect of the breach on the overall repute of the administration of justice; 3) concluding that the abuse would not be perpetuated in the future; and 4) concluding that the conduct of the police and prosecutor could be excused by their subsequent efforts to reconstitute the privilege.
[81] It is quite clear from a review of the Court of Appeal’s decision in X.Y., that the ultimate result in granting a stay of proceedings flowed from the fact that there had been a breach of the accused’s confidential informant privilege. It is particularly important in the remedy that was granted, that the Court of Appeal considered the trial judge “did not consider the overall impact of the disclosure such as occurred here on current and prospective informers”. Official conduct, such as occurred here, could have a significant impact on future disclosures by current and prospective informers to the detriment of the administration of justice overall.” [Emphasis added]
[82] In support of AB’s abuse of process application, Ms. Shemesh stresses that AB’s identity as a confidential informant was revealed to everyone who was involved in the investigation of the importation of illicit drugs. It is argued that AB was arrested and charged by the same officers who had been entrusted to work with him/her as a confidential informant, and argued that AB, subsequent to his/her arrest, was subjected to a video interview during the course of which he/she was restrained from explaining his/her role as a confidential informant.
[83] After his/her arrest, he/she was interviewed “off the record” as a confidential informant and released on a promise to appear with no conditions. It is argued that he/she was then required to meet with individuals to whom the illicit drugs were ultimately destined in order to assist the ABCPF in furthering their investigation. By releasing his/her into the field as an agent, it is argued that AB was not provided with any security and was thus placed in a position of danger.
[84] Ms. Shemesh argues on behalf of AB that the cumulative effect of the police conduct prior to his/her arrest; during his/her arrest; and subsequent to his/her arrest, demonstrates a complete disregard for his/her section 7 constitutional rights such that the community would be shocked as to how the police investigated, charged and prosecuted AB. Such conduct, it is argued, rises to the level of unfairness which mandates a stay of proceedings.
[85] As to the disclosure of AB’s identity as a confidential informant, much of the evidence in this regard flows from the evidence of Officer M. Officer M testified that he advised Officers H and S that AB was a confidential informant. H and S deny that Officer M supplied this information during the debriefing and leading up to the arrest of AB, although they ultimately did surmise that he/she may have been a confidential informant.
[86] Officer G, in his evidence, initially could not recall if anyone said that AB was an informant during the briefing leading up to the controlled delivery of the illicit drugs to AB’s residence. Officer G, however, did concede that he thought it might have been discussed in order to protect AB’s safety.
[87] As to the disclosure of AB’s status as a confidential informant, Crown counsel – in his written submissions, suggests that to the extent that his/her status was revealed, it was done in a limited manner “amongst experienced plain-clothes officers for the purposes of protecting AB.”
[88] The position advanced on behalf of the Crown does not accord with the principles of confidential informer privilege, nor does it conform with the ABCPF policy. In that regard, Sergeant T who was responsible for the files of confidential informants with the ABCPF was confronted with the evidence of Officer M, in which Officer M stated that everyone involved in the investigation at AB’s home knew about the sensitivity of his/her position as a confidential informant. When confronted with this evidence, Sergeant T admitted that he was surprised and that the disclosure of his/her identity to other individuals was against the policy of the ABCPF.
[89] Sergeant T highlighted his concern with respect to the disclosure of AB’s status as a confidential informant as follows:
For myself I just didn’t think it was important when we were investigating this drug matter. I didn’t think his/her status as an informant would be necessary for them with the role within the investigation and – therefore, I mean we’re very cautious with that information so I didn’t think that there was a need for them to know.
[90] Officer W, who was AB’s handler, confirmed in his evidence that there was a “golden rule” pursuant to which the identity of a confidential informant should never, ever be disclosed, and that this was taught to him and others and was clearly understood. Despite this golden rule, however, it appears from the evidence of Officer M that AB’s identity was unnecessarily disclosed to at least two police officers; Constables H and S. AB never consented to the disclosure of his/her status as a CI to Officers H and S or anyone else.
[91] In his written submissions Crown counsel, in my view, quite correctly points to the fact that the ABCPF is a relatively small police service and that the various units involved in this investigation involved a limited number of police officers who, by definition, had had involvement with AB as a confidential informant. In that regard, the written submissions correctly note that the Drug Enforcement Unit “Often knew who each other’s informants were”. The Intelligence Unit consisted of AB’s former handlers, Officer G and Sergeant T, who had personally met with AB on at least one occasion prior to his/her arrest as a secondary officer during an informant meeting. The Drug Enforcement Unit included AB’s handler, Officer W and Officer M, who had also met with AB on at least one occasion prior to his/her arrest as a secondary officer.
[92] It is quite clear that with the knowledge that a large quantity of illicit drugs was going to be delivered to AB’s residence, that the potential officers involved with the Drug Enforcement Unit and the Intelligence Unit had prior dealings with AB as a confidential informant. It is equally clear to me, that everyone who was potentially involved in this drug investigation had ample opportunity to seek out professional advice in terms of how to deal with this investigation, knowing that AB was a confidential informant. There appears to have been no effort to seek out that professional advice.
[93] There was ample time for everyone involved in this investigation to have considered the advisability of referring the investigation out to another police force. The Ontario Provincial Police were involved in the controlled delivery. I heard no evidence as to why the O.P.P. could not have conducted the subsequent arrest and interview of AB. I can see absolutely no reason why the ABCPF involved both AB’s present handler and prior handler in the actual arrest of AB. The very persons that AB had come to trust as his/her handlers were the ones who were involved in his/her arrest. The relationship between a confidential informer and his/her handler is one fundamentally based on trust. There was a fundamental breach of that trust in the manner in which AB was arrested.
[94] Subsequent to his/her arrest, AB was video interviewed by Officers S and H. It is argued on behalf of AB that he/she was, at all times during the course of this video, a confidential informant. By implication it is suggested that because of his/her role as a confidential informant, he/she should not have been videotaped because of a risk that he/she would disclose his/her status as a confidential informant. It is argued that in fact there was a concern subsequent to his/her arrest that he/she had disclosed his/her status as a confidential informant, and it was for this reason that Officer G was engaged to retrieve the videotape that had been provided to his/her lawyer as part of the Crown’s disclosure obligations.
[95] Both Officers G and T confirmed in their evidence that they had previously been involved in situations in which confidential informants had been arrested for committing crimes. Officer M confirmed in his evidence that it was “normal” to interview informants as an accused.
[96] As I have already indicated, where an accused commits a crime for personal gain independent of his/her role as a confidential informant, the accused with that status cannot invoke confidential informant privilege to avoid prosecution. The scope of informer privilege does not extend to providing protection to guard or ensure an informant’s physical security forever and wherever. The Alberta Court of Appeal in United States v. O’Dale, 2014 ABCA 12, at paragraph 15 states:
While the courts have repeatedly affirmed that informer privilege was developed in part to protect informers, there is no authority to support a proposition that the duty extends to the physical protection of people who assist in law enforcement. Further, there is no authority for the proposition that if an informer commits a crime unconnected to the provision of information to the police that the authorities violate privilege by putting the informer on trial for his or his/her crime although the public trial process would result in the dissemination of the informer’s name.
[97] I am not satisfied that the conduct of the police in subjecting AB to a video statement on the facts of this case would warrant a stay of proceedings. I have reviewed Exhibit 8, which is the transcript of the audio interview of AB on day 2 conducted by Officer S and H. While there are a number of instances where it can be suggested that AB was about to reveal his/her status as a confidential informant, steps were taken by Officers S and H to re-direct the interview so that such disclosure did not take place.
[98] A police interview subsequent to an arrest is undoubtedly a stressful situation confronting an accused. Nonetheless, someone who is a confidential informant has the same obligation that the police have during such an interview, i.e. not to disclose his/her status as a confidential informant. Assuming that the accused has been afforded the usual police caution and understands his/her Charter rights, the police have the right to conduct an interview of an accused who is alleged to have committed a crime independent of their role as a confidential informant. Both the police officers involved in that interview and the accused have obligations not to disclose the status of the accused as a confidential informant.
[99] Subsequent to his/her police interview, AB was then interviewed by Officers M and W in an “off the record” discussion which ultimately led to AB being released on a promise to appear, with the expectation that he/she would meet with ST. In that regard Officer M stated in his evidence, in response to a question as to why he/she was released on a promise to appear:
It was just a decision that was made. He/she had – there’s no concerns to hold him/her for bail. We did expect him/her to meet these people so in order for us to possibly pursue our investigation further we did release him/her. [My emphasis]
[100] Crown counsel suggests in his written submissions that when AB was released on a promise to appear, he/she did not become an agent for the ABCPF. In that regard, Crown counsel stressed the evidence of a number of the police officers, including Officer M, who testified that the ABCPF does not deal with agents. One has to seriously question this evidence, given that the policy itself defines “agent” and the role of an agent. If in fact, the evidence as attested by the officers who testified before this court is that ABCPF never deals with agents, one has to question why the policy itself provides for the role of an agent.
[101] What is particularly troubling about the evidence of Officer M and the role that AB assumed subsequent to his/her arrest in meeting with ST is the evidence of the superior officer, Sergeant T. A contact record for day 2 was entered into evidence, which on its face indicates that AB advised the police that he/she was meeting with ST at the PD Plaza, and that Sergeant T knew about this meeting. The policy is quite clear that contact records are to be kept with respect to each interaction with a confidential informant, and that the records are to be made contemporaneously.
[102] The contact record for day 2 in fact was not prepared day 2. The contact records concerning AB’s role as a confidential informant subsequent to his/her arrest never existed until Officer M was preparing for trial. Only then were the contact records created and produced. While the contact records appear to confirm that Sergeant T did know what was transpiring subsequent to AB’s arrest, Sergeant T confirmed that this in fact was not correct. Sergeant T confirmed in his evidence that he was not even aware that the police were still communicating with AB subsequent to his/her arrest. He only discovered this as he was preparing for trial. Sergeant T conceded in his evidence that even though the policy required that a confidential informant’s handler submit contact records to the controller, i.e. Sergeant T, he did not see the contact records until a year later when he was preparing for trial.
[103] Sergeant T testified that he knew nothing about any of the information supplied by AB subsequent to his/her arrest, specifically information about the identification of two specific persons, i.e. EF and ST, or anything that might have linked these individuals by way of a licence plate.
[104] Crown counsel stresses in his written argument that AB was not released with any understanding that he/she was going to do anything other than on his/her own accord. I do not accept this argument. Officer M, as previously indicated, stated that he expected AB to meet ST precisely for the purposes of allowing him to pursue his investigation further. Officer M also indicated in his evidence that he knew that a meeting with ST was going to take place once AB was released from the police station. He stated in his evidence that he was in the area where the meeting was going to take place “just by chance”. He further stated: “…and my goals that evening were to attempt to get a licence plate of this ST or possibly identify him through a traffic stop. After the interview and after he/she was released and this meeting was to take place, the only officers that I recall being around were Constable W and myself…”
[105] What is particularly troubling about the actions of Officer M and W in releasing AB into the field to meet with ST is the apparent lack of concern for his/her safety. Sergeant T, when confronted with the information about his/her release that he was unaware of until preparing for trial, confirmed that he should have known about the proposed plan being entertained by Officer M. In his evidence, Sergeant T confirmed that he knew nothing about what was about to occur, and when confronted with this evidence and the issue of safety for AB, he stated:
Q. Okay, and so certainly in this case if AB said the two officers – I’m going to meet the guy that sent me the something and see what further information I can get for you, you may say not a good idea.
A. Yeah.
Q. You would do that, right?
A. Yes.
Q. Why?
A. Well, there’s – I mean with something like this and not – not knowing the relationships and all that kind of stuff there’s a danger factor there. I mean, he/she’s just lost the drugs because we’ve seized it so I don’t know where that could go – and – and again depending on the conversations we – we can’t direct somebody to go do something. [Emphasis added]
[106] It is abundantly clear that if Sergeant T had known about the plan to release AB on a promise to appear to meet with the person who was supposed to have ultimately received the drugs, that such a plan was potentially fraught with danger and he would not have approved it.
[107] Crown counsel argues in relation to the stay application that this is not one those rare cases where a stay is appropriate. It is suggested for the Crown that there is no prejudice that would be manifest, perpetuated or aggravated by the outcome of AB’s trial - and even if there is such prejudice it is minimal. In my opinion this is one of those rare cases where the misconduct of the ABCPF is so egregious that to allow this case to go forward would constitute a new and ongoing abuse – see R. v. Singh 2013, ONCA 750 at para. 39.
[108] The officers involved in the investigation and subsequent arrest of AB were under no time constraints in terms of the delivery and execution of the search warrant at AB’s home. Some of the officers involved knew AB was a confidential informant and therefore knew or should have known that even if they had reasonable grounds to believe he/she had committed a criminal offence they had special responsibilities to ensure his/her status as a confidential informant was not compromised. The evidence establishes that the amount of drugs involved was a large drug bust for Z - perhaps it’s biggest as of day 2. There does not appear to have been any effort made to consider whether the ABCPF should seek the advice of Crown counsel in terms of how to deal with AB given his/her status as a CI. There was no consideration given to whether it was advisable to have the ABCPF involved in the drug bust. What is most egregious is that the two handlers who had been responsible for AB were directly involved in his/her arrest. The relationship between a confidential informant and his/her handler is one premised on trust. I can think of no greater breach of that trust than to have the informant’s own handler directly involved in the arrest as occurred on day 2.
[109] The privilege that attaches to the status of a confidential informant is almost absolute - save and except for the innocence at stake exception - which is not in play in this case. Neither the police, nor the Court can allow the privilege to be breached. Yet it is clear from the evidence of Officer M and Officer G that AB’s status as a confidential informant was disclosed during the briefings leading up to his/her arrest. As Cory J.A. noted in R. v. Hunter (1987) 1987 123 (ON CA), 57 C.R. (3d) 1, “…It was obvious to the courts from very early times that the identity of an informer would have to be concealed, both for his or his/her own protection and to encourage others to divulge to the authorities any information pertaining to crimes…” While the Crown can argue that this was almost a de facto reality given the relatively small size of the ABCPF drug and intelligence units, it does not excuse the breach of the informer privilege that occurred in this case. It is precisely because of that relatively small size that consideration should have been given to using another police force in the execution of the search warrant.
[110] A confidential informer must have the absolute certainty that his/her status as a confidential informant will never be disclosed to anyone (save and except for the innocence at stake exception). Without that confidence the informer will be subject to possible retribution. The disclosure of his/her status in this case during the course of the briefings was not only a violation of the common law informer privilege, but also a violation of the ABCPF policy which states the CHS controlling officer (i.e. handler) shall “Protect the identity of a CHS except when the administration of justice requires otherwise”.
[111] It has been well recognized in the jurisprudence that informers who play an important role in providing information to the police that assists in the ultimate prosecution of drug related offences are always in danger of possible retribution from the people that they are informing on. This court needs no evidence that AB faced that possible scenario in his/her role as an informer. In fact, the possibility of such retribution was implicitly recognized in the evidence of Sergeant T, who when confronted with the evidence of Officer M as to what took place with AB after his/her release, agreed that he/she was put into a position of danger when he/she met with ST.
[112] It is suggested that AB did what he/she did post-arrest on his/her own volition. I disagree. What AB did after he/she was released on a promise to appear was done at the behest of the officers who released him/her. It is difficult to conceive of any case where an accused is arrested on the type of charges that AB faces in this case, where that accused would be released on a promise to appear. Officer M released AB expecting he/she would meet with ST “in order for us to possibly pursue our investigation further”. There appears to have been little to no recognition on the part of the officers responsible for this investigation of the danger that AB was put into when he/she was released for reasons clearly motivated by furthering the police investigation.
[113] What is even more perplexing is having released him/her to meet with ST and having been given information by AB concerning EF and ST as the persons most directly involved in the importing of the illicit drugs, there does not appear from the evidence to have been any further investigation concerning these two individuals. Adding to this puzzle is the evidence that came out during the trial concerning the so-called photo line-up, Exhibit 7. The photo line-up had a number of pictures on it, two of whom were picked out by AB as EF and ST. The photo line-up had information concerning these and other individuals which was not disclosed to AB. The photo line-up that was initially tendered into evidence had that information redacted. During the trial a copy of the photo line-up was discovered and after reviewing it I ordered some of the redacted information to be disclosed. The redacted information for EF revealed the following information, “EF imported illicit drugs to the same street as AB in the same year as day 2” (See Exhibit 7C).
[114] Much debate occurred during the trial as to when that information was placed on Exhibit 7. I cannot resolve that debate. What seems clear is that at some point material to this case, some of the officers involved in the investigation of AB had the belief that EF – whose real name is not EF but rather GH – was the person involved in the illicit drugs that are the subject matter of this trial. Having accepted AB as a reliable informant in the past; having paid him/her a substantial amount of money in connection with the arrest of XY no more than a few days before his/her own arrest; it is extremely difficult to understand why the ABCPF appears to have stopped its investigation concerning the illicit drugs at issue in this case.
[115] In my view, where the ABCPF breached the informer privilege by disclosing his/her status at the briefing prior to his/her arrest; where the ABCPF breached the trust inherent in the relationship between informer and handler by having his/her handlers directly involved in his/her arrest; and where the ABCPF released AB in a situation of danger, these are fundamental considerations in whether to allow the prosecution of AB to continue. In my view, to do so would be to only further prejudice AB.
[116] To allow the prosecution to continue would also, in my view, bring the administration of justice into disrepute. The importance of informers to police investigations has been emphasized throughout the case law. In R v Scott, 1990 27 (SCC), [1990] 3 SCR 979, Cory J. emphasized this point when he stated:
Trafficking in narcotics is a lucrative enterprise. The retribution wreaked on informers and undercover officers who attempt to gather evidence is often obscenely cruel. Little assistance can be expected from informers if their identity is not protected. There can be no relationship of trust established by the police with informers without that protection. If the investigation of drug-related crime is to continue then, to the extent it is possible, the identity of informers must be protected.
[117] The conduct of the ABCPF in this case, in the manner in which they dealt with AB prior to his/her arrest, during his/her arrest and subsequent to his/her arrest, reflected a fundamentally flawed understanding of police obligations when dealing with a confidential informer, both at common law and as reflected in the ABCPF written policy itself. As the Court of Appeal in X.Y., at para. 22, made clear:
The ban on revealing an informers identity protects not only an individual informer from possible retribution, but also signals to potential informers that their identity too will be protected…
[118] To allow this prosecution to continue would send the wrong signal not only to AB, but also to the ABCPF and to other potential informers that future informers could not expect the protection that they were promised when they take on the role of being a confidential informer. To allow this prosecution to continue could have a significant negative impact on future informers, by not only those who are already registered with various police forces as a confidential informer but also anyone else who might consider becoming a confidential informer, all of which would be to the detriment of the administration of justice overall.
[119] This court is required to conduct a balancing exercise in determining whether or not the interests of justice in continuing with the prosecution outweigh the granting of a stay of proceedings. Clearly, society in general has an interest in seeing that anyone charged with the type of offences presently before this court are dealt with to their ultimate conclusion. Society also has an interest in ensuring that the investigation and prosecution of drug offences in general will continue to be assisted with information supplied by confidential informers. The risk that future prosecutions will be hampered because confidential informers do not have the confidence that their status as a confidential informer will not be revealed, except by order of the court, is such that in my view a stay of prosecution in this case must be granted. The application by AB for a stay of proceedings is therefore granted.
__________________
Justice M.L. Edwards
Released: September 4, 2015