CITATION: R. v. McGean et al, 2016 ONSC 1456
COURT FILE NO.: 121/15
DATE: 2016-02-29
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
T. Gilliam and N. Gilks, for the Crown
Crown
- and -
Randy McGean. Isaac Lucas, Keith Earle, Lyle Gough and Dan Carley
Accused
J. Stephenson, for Randy McGean
M. Wendl, for Isaac Lucas
L. Giordano, for Lyle Gough
Keith Earle and Dan Carley, Self-represented
HEARD: February 9, 2016
The Honourable Justice J.R. Henderson
PRETRIAL MOTION # 2
CROWN DISCLOSURE
INTRODUCTION
[1] This is a motion by the accused for disclosure from the Crown of Questionnaires, Debriefing notes, and Handlers’ notes regarding 22 confidential informants (“CIs”) who provided confidential information that was used by the Crown to support two omnibus orders issued on July 17, 2013 and September 13, 2013.
[2] After the accused delivered this motion, the Crown made inquiries and determined that the Questionnaires and the Debriefing notes had been relied upon by the affiant who swore the Information To Obtain (“ITO”) in support of the omnibus orders. Therefore, the Crown acknowledges that the Questionnaires and the Debriefing notes must be disclosed, subject to redacting in order to protect the identity of the CIs.
[3] The balance of this motion relates to the accused’s request for disclosure of the notes made about the CIs by the police officers who were the handlers of the CIs (hereinafter called “the Handlers’ notes”). The Crown takes the position that the Handlers’ notes should not be disclosed because the notes contain confidential information, and because they were not relied upon by the affiant for the purpose of the ITO.
[4] The position of the accused is that the Crown has an obligation to disclose all relevant material to the accused, including the Handlers’ notes, regardless of whether the affiant relied upon the material for the purpose of the ITO. The accused claim that they are entitled to disclosure of these notes so that the accused can compare the Handlers’ notes to the material that was filed in support the omnibus orders. The accused rely upon their rights to make full answer and defence as contemplated in s. 7 and s. 11(d) of the Charter.
[5] It should be noted that it is anticipated that the accused will be bringing a Garofoli application to challenge the validity of the omnibus orders in accordance with the procedure set out in the case of R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421.
THE FACTS
[6] The accused persons were arrested in November 2013 as a result of a Niagara Regional Police Service investigation into the activities of the Black Pistons Motorcycle Club known as Project Resurgence. The accused have been charged with offences that include conspiracy to traffic in narcotics, possession of narcotics for the purpose of trafficking, possession of proceeds of crime, possession of prohibited weapons, and operating as members of a criminal organization.
[7] Project Resurgence made use of two Part VI authorizations to intercept communications, authorized by the omnibus orders of July 17, 2013 and September 13, 2013.
[8] The affiant of both ITOs states that he relied, in part, upon confidential information that was provided to him by the police handlers of the 22 CIs. That information was provided to the affiant by way of Questionnaires and Debriefing notes that were prepared by the police handlers. The affiant did not receive or rely on any of the Handlers’ notes; however, the affiant himself was the police handler for two of the CIs and has his own Handler’s notes for those two CIs.
ANALYSIS
[9] The seminal case with respect to Crown disclosure is R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326, which provides that an accused has a right to disclosure of all material in the possession of the Crown that is potentially relevant to the case, regardless of whether it is exculpatory or inculpatory.
[10] However, the accused’s right to full and complete disclosure has been limited where the Crown’s material contains confidential information provided by CIs. The conflict between an accused’s right to full disclosure and the need to protect confidential sources or confidential information has arisen in the context of Garofoli applications to challenge the validity of the orders or warrants that were founded upon the confidential information.
[11] The decision of the Supreme Court of Canada in R. v. Pires; R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343 provides a useful analysis. In that case, in the course of a Garofoli application, the trial judge had denied leave to cross-examine the affiant on the ITO in support of a warrant for a wiretap intercept. In that context, Charron J. wrote about the Crown’s general obligation to provide disclosure at para. 26 as follows:
In addition, under the principles established in Stinchcombe, the defence is entitled to all material in the possession or control of the Crown that is potentially relevant to the case, whether favourable to the accused or not. The defence can therefore compare the contents of the investigative file received from the Crown to the authorization’s supporting material to ascertain whether anything throws doubt on the reasonable believability of the latter. Further, the disclosure material may also provide the defence with possible third-party avenues of inquiry.
[12] Thereafter, at paras. 29 to 36 Charron J. observed that a Garofoli review hearing is not intended to test the Crown’s allegations in respect of the offence itself, but the reviewing judge only inquires into whether there was any basis upon which the authorizing judge could be satisfied that the relevant statutory preconditions existed. Also, Charron J. noted that one of the arguments against allowing cross-examination of the affiant was the need to protect the identity of the CIs who had provided information to the affiant. For these reasons, Charron J. observed that there is a Garofoli threshold test that must be applied before leave to cross-examine will be granted.
[13] In summary, Charron J. wrote the following at para. 31:
It is in this narrower context that the right to cross-examine, as an adjunct to the right to make full answer and defence, must be considered. There is no point in permitting cross-examination if there is no reasonable likelihood that it will impact on the question of the admissibility of the evidence. The Garofoli threshold test is nothing more than a means of ensuring that, when a s. 8 challenge is initiated, the proceedings remain focussed and on track.
[14] The same factors considered by Charron J. in Pires and Lising regarding a request for leave to cross-examine an affiant have been considered by several courts in recent years as to the extent and nature of the Crown disclosure that is required in the context of a Garofoli application.
[15] In the case of R. v. Ahmed, [2012] O.J. No. 6643, MacDonnell J. considered the extent of the obligation of the Crown to provide disclosure in a Garofoli application and at para. 17 wrote:
In the context of a Garofoli review, an accused has a right to disclosure of all relevant information in the possession of the Crown. However, relevance is a context-sensitive concept, and what will be relevant on a Garofoli review must be determined in light of the nature and scope of the review, which is focused on the adequacy of the material that was before the judge who granted the authorization. An accused is entitled to disclosure of that material as of right, but to obtain disclosure of other material, the accused is obliged to show a basis to believe that disclosure of the material may assist in showing that the authorization should not have been granted.
[16] In the case of R. v. McKenzie, 2016 ONSC 242, Campbell J. identified three competing interests that were to be considered when determining the amount of Crown disclosure required in a Garofoli application. At para. 19 to 22, Campbell J. specifically identified these three competing interests as (1) the accused’s right to make full answer and defence, (2) the fact that a Garofoli application is not itself a criminal trial and must not be permitted to effectively become one, and (3) the duty to avoid compromising the anonymity of any CI.
[17] Further, in the McKenzie case at para. 15, Campbell J. enunciated a general rule for disclosure in the context of a Garofoli hearing as follows:
In the specific context of an evidentiary hearing conducted pursuant to R. v. Garofoli to determine the validity of an authorization or search warrant and the admissibility of the evidence obtained by the police pursuant to ss. 8 and 24(2) of the Charter, the right to disclosure entitles the accused to virtually automatic access to: (1) all documents that were put before the authorizing or issuing justice; and (2) all other relevant materials in the “investigative file” concerning the accused.
[18] At para. 31, Campbell J. defined the “investigative file” as “including all materials accumulated (i.e. gathered or created) by the investigating police agency in its investigation, and relied upon in the search warrant materials targeting the suspect/accused.”
[19] On the facts of the present case the Crown concedes that the Questionnaires and the Debriefing notes must be disclosed because they were relied upon by the affiant in preparing the material for the omnibus orders. Regarding the Handlers’ notes, given that the affiant states that he did not rely upon the notes for the omnibus orders, the issue is whether the Handlers’ notes must be disclosed solely because they constitute material in the possession or control of the Crown that is potentially relevant to the case.
[20] In the case of R. v. Bernath, 2015 BCSC 632, Ballance J. of the British Columbia Supreme Court considered a request by an accused for disclosure of Debriefing notes and Handlers’ notes in the context of a Garofoli application. Ultimately, Ballance J. found that both the Handlers’ notes and the Debriefing notes should be disclosed. Accordingly, in the present case counsel for the accused rely upon the Bernath decision.
[21] However, upon careful scrutiny, it is clear at para 78 that Ballance J. ordered the disclosure of this material because the Handlers’ notes and the Debriefing notes were “...concerning a particular accused and relied upon by the affiant...” [Emphasis added]. Therefore, I infer that in the Bernath case Ballance J. ordered that the Handlers’ notes must be disclosed because they had been relied upon by the affiant.
[22] Similarly, as mentioned earlier, in the McKenzie case at para. 31, Campbell J. found that the Crown must disclose “all materials accumulated … by the investigating police agency in its investigation, and relied upon in the search warrant materials ...” [Emphasis added]. Therefore, it appears that Campbell J. also found that the material must be disclosed if it was relied upon by the affiant.
[23] Further, at para. 38 of McKenzie, Campbell J. observed that the handwritten notes or briefing notes of police handlers that were not provided to the affiant are usually held to be outside of the investigative file for disclosure purposes.
[24] Based on my review of the case law I find that in the context of a Garofoli application, where the Crown is in possession of confidential information that has been provided by CIs, the Crown must disclose all of the material that was before the judge who made the authorizing order, plus any part of the investigative file that was referenced in the material that was before the authorizing judge, plus all material that was relied upon by the affiant in preparing the ITO in support of the authorizing order.
[25] In the present case I find that the Handlers’ notes with respect to the 22 CIs do not fall into any of these categories that would require Crown disclosure.
[26] There is one slight modification of this general rule that is needed in the present case because the affiant of the ITO in the present case is, in fact, a handler for two of the CIs. Even though the evidence is that the Handlers’ notes for all 22 of the CIs were not relied upon by the affiant for the preparation of the ITO, I find that the Handlers’ notes of the affiant with respect to the two CIs that he personally handled should be disclosed.
[27] In my view, if the affiant was a handler of a CI and made notes with respect to that CI, it is impossible to believe that the affiant purged his mind of his own Handlers’ notes for the purpose of preparing the ITO. Therefore, although the notes of the handlers of the other CIs are not prima facie discloseable, in my view the affiant’s own Handlers’ notes with respect to the CIs that he handled must be disclosed, subject to redacting to protect the identity of the CIs.
[28] Lastly, the accused submit that, even if the Handlers’ notes were not relied upon by the affiant, these notes should be disclosed in order to allow the accused to perform a “fact checking” exercise as discussed in the Pires and Lising case. In my view, in the context of a Garofoli application, this position has been rejected in several recent decisions, including the decision in the Ahmed case at paras. 44 to 47, the decision in R. v. Blake, 2015 ONSC 6008 at paras. 23 to 26, and the decision in R. v. Arviko (9 April 2013) Toronto (ONSC) at page 12.
CONCLUSION
[29] For all these reasons, I order that the Crown shall forthwith disclose all of the Questionnaires and Debriefing notes with respect to the 22 CIs, and the Handlers’ notes that were made by the affiant with respect to the affiant’s two CIs, all of which are subject to redacting for the purpose of protecting the identity of the CIs.
Henderson, J.
Released: February 29, 2016
CITATION: R. v. McGean et al, 2016 ONSC 1456
COURT FILE NO.: 121/15
DATE: 2016-02-29
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
Crown
- and –
Randy McGean. Isaac Lucas, Keith Earle, Lyle Gough and Dan Carley
Accused
PRETRIAL MOTION # 2
CROWN DISCLOSURE
Henderson, J.
Released: February 29, 2016