CITATION: R. v. Knelsen, 2016 ONSC 286
COURT FILE NO.: CR-15-12
DATE: 2016-Feb-10
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
JOHAN KNELSEN
Applicant
Jaime Pereira, for the Crown, Respondent
Michael Lacy, for the Applicant
HEARD: February 8, 2016
The Honourarble mr. justice r. j. harper
Issues
[1] This is an application brought by Johan Knelsen for the following Orders:
a. Prohibiting the Crown from relying on any information it has not disclosed or any derivative of information not disclosed, pursuant to s. 24(1) of the Charter of Rights and Freedoms;
b. Order for disclosure of information in the Crown’s possession or control that has not been disclosed that is relevant to the pending proceedings;
c. Order re-opening the Applicant’s s. 11(b) Application.
Chronology leading to this Application
[2] The crown and the defence entered into an agreement that was confirmed by letter from defence counsel to the crown dated September 16, 2015. That agreement reads:
The defence will be challenging the validity of the arrest and the subsequent search incident to arrest. You indicated that the Crown will not attempt to rely on any information that has not been disclosed to the defence to justify either the grounds for the search and/or the inclusion of the evidence at the trial. In other words, you will not rely on any privileged information to justify the arrest, the search or your view that if the there was a Charter violation admission of the evidence would not bring the administration of justice into disrepute. This agreement on your part will obviate the need to argue the applicability of Step 6 of R. v. Garofoli on the s. 8/9 application or the constitutionality of such a regime.
[3] The pre-trial Charter applications (ss. 11(b), 8, 9 and 24) commenced on January 11, 2016. During the voir dire being held as part of the applications, the Crown adduced evidence that included evidence of the lead detective in this investigation, Detective Brazeau. Within this voir dire, I ruled that the Officer could use the contents of the Information to Obtain (ITO) in respect of Authorization # 4 in order to refresh his memory. Early in his testimony, Officer Brazeau was testifying about certain facts that spoke to the credibility and reliability of Confidential Informant #1 (CI-1). Officer Brazeau had also testified early in his testimony to information about CI-1 that was not contained in any ITO and had not otherwise been disclosed to the defence. I allowed a brief adjournment to allow the Crown the opportunity to review the ITOs and disclosure in order to make submissions on this issue.
[4] When court resumed, the Crown conceded that there were two facts in the testimony of the Officer that had not been previously disclosed. The Crown asked for an adjournment of the Application in order to conduct a further review and provide an additional summary of the information contained in the Source Debriefing Reports and the Handler’s Notes. The Crown wanted time to ensure that no Confidential Informant Privilege and identifying information would be a part of any summary that may contain information not previously disclosed.
[5] The defence sought to obtain copies of the Source Debriefing Reports and the Handler’s Notes, redacted to protect privilege given what had transpired. I allowed the adjournment for the Crown to conduct the review and provide summaries. Depending on what the summaries revealed, the defence could re-open their request to obtain further disclosure. The matter was then adjourned to February 8, 2016 to be spoken to.
[6] On February 1, 2016, the defence brought a further Application for disclosure. That Application claimed that as a result of the Crown’s admission that certain information had not previously been disclosed, was not privileged, and should have been disclosed, disclosure should be made as the police attempted to rely on this information. The defence takes the position that the source reports and notes (redacted to protect identity) must be disclosed under the circumstances.
[7] The defence argued upon the return of this matter on February 8, 2016 that it received the “Crown summary” on February 5, 2016. That was the Friday prior to the return of this matter on the following Monday. The Crown admitted that further information had never been previously disclosed. However, the Crown did not identify what that information was. The defence submitted that it was now faced with attempting to sift through the Crown summary in order to make a rushed attempt to cross reference other material in order to identify some of the material that is relevant, not protected by privilege and should have been disclosed.
[8] The defence identified certain information that was submitted to fall within that category of information that should have been disclosed, even upon this rushed review of the Crown summary. One example that the defence points out is extremely significant is the notation in the Crown summary that CI-1 was both a casual user of marijuana and cocaine and a trafficker in cocaine. The trafficking part of the information was not part of the original disclosure. The defence gave other examples of information that falls within this category and should have been disclosed.
[9] The position of the defence is that, given the circumstances, the only way to place the defendant in a position that will allow a full answer and defence is to have the Crown disclose the source documents. If the documents are redacted to protect privilege, the defence would then be in a position to make an application to the Court for a judicial review of the redacted portions to ensure that full Crown disclosure has been made.
[10] The Crown takes the position that it will not rely on any material not previously disclosed, making the non-disclosed information irrelevant. I do not agree. Relevance is not determined by what the Crown decides to rely on. Information is relevant if it has a tendency to prove or to disprove a material fact in issue. The Confidential Informant’s credibility and reliability is material on an Application to determine whether the police had reasonable and probable grounds to make a warrantless arrest. If the police are relying on information provided by the Informant, as is the case before me, information such as CI-1 being a drug trafficker is very relevant. The only factor that would prevent disclosure is if that information would tend to identify the Informant. That cannot be the case as the Crown summary blatantly disclosed that information.
The Law and Analysis
[11] The starting point for this analysis is R. v. Stinchcombe 1991 45 (SCC), [1991] 3 S.C.R. 326; R. v. Dixon 1998 805 (SCC), [1998] 1 S.C.R. 244. The Crown has a duty to disclose all information in its possession or control that is not otherwise privileged to an accused in accordance with ss. 7 and 11(d) of the Charter. Sopinka J. stated at para 11 of the decision in Stinchcombe:
It is difficult to justify the position which clings to the notion that the Crown has no legal duty to disclosure all relevant information. The arguments against the existence of such a duty are groundless while those in favour are, in my view overwhelming.
[12] Justice Sopinka went on in that same paragraph to cite Boucher v. The Queen, [1955]¸ S.C.R. 16. where Rand J. stated at pp. 23-24:
It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction, it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof is the facts is presented; it should be done firmly and pressed to its legitimate strength but it must also be done fairly. The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life that can be none charged with greater personal responsibility. It is to be efficiently performed with and ingrained sense of dignity, the seriousness and the justness of judicial proceedings.
[13] At paragraph 18 Sopinka J. stated:
In my opinion there is a wholly natural evolution of the law in favour of disclosure by the Crown of all relevant material. As long ago as 1951, Cartwright J. stated in Lemay v. The King, 1951 27 (SCC), [1952] 1 S.C.R. 232, at p. 257:
I wish to make it perfectly clear that I do not intend to say anything which might be regarded as lessening the duty which rests upon counsel for the Crown to bring forward evidence of every material fact known to the prosecution whether favourable to the accused or otherwise…
This statement may have been in reference to the obligation resting on counsel for the Crown to call evidence rather than to disclose the material to the defence, but I see no reason why this obligation should not be discharged by disclosing the material to the defence rather than obliging the Crown to make it part of the Crown`s case. Indeed, some of the information will be in a form that cannot be put in evidence by the Crown but can be used by the defence in cross-examination or otherwise. Production to the defence is then the only way in which the injunction of Cartwright J. can be obeyed.
[14] It is conceded by both the Crown and the defence that information that may tend to identify a Confidential Informant is privileged. Otherwise the Crown must exercise any discretion relative to whether or not the information is relevant by erring on the side of inclusion. However, when there has been incidents that cause concern that all the relevant information not protected by privilege has not been disclosed, the Court must act in a way that every effort is made to protect the continuation of the prosecution while at the same time ensuring due process and fairness. Fairness, in my view, is at the heart of the disclosure requirement.
[15] The Crown seeks to leave things as they are at this point. The Crown submits that the up-to-date Crown summary provided on February 5, 2016 satisfies their duty to disclose. I do not agree. There must be confidence that the disclosure is complete given the demonstrated gaps in the disclosure to this point.
[16] There has been an evolution in the law as it relates to disclosure of source material documents that have been requested in this case. I refer to the very thorough and recent review and analysis by Justice Campbell in R. v. McKenzie, 2016 ONSC 242, [2016] O.J. No. 293. That case dealt with a request for pre-trial disclosure within an Application to quash a tele-warrant. This case deals with an Application for disclosure within an Application to contest the validity of a warrantless arrest and a subsequent search of the person and motor vehicle. The principles enunciated in McKenzie apply to the issues before me.
[17] The documents requested to be disclosed in this Application are the Source Debriefing Reports and Handler’s notes. These documents are not placed within the investigative file. It is long established that, subject to privilege, the fruits of the investigation against the accused form part of the investigative file and must be disclosed. It is also established that unless the Crown is able to establish that the material is clearly irrelevant, it must be disclosed. Justice Campbell in McKenzie further points out that if the material is not part of the investigative file, it is presumptively irrelevant and need not be disclosed unless the accused can establish that there is a reasonable possibility that disclosure will be of assistance in relation to a material issue on the application.
[18] I have alluded to the fact that some of the material that only came to light in the Crown summary disclosed on February 5, 2016 was relevant to the material issue of credibility and reliability of CI-1. That example went far beyond the standard of having to demonstrate a reasonable possibility that it would assist with respect to a material issue.
[19] I agree with the analysis of Justice Campbell in McKenzie relative to the all-or-nothing approach contained in the jurisprudence relative to disclosure of the contents of the investigative file. The case law ranges from decisions ordering a very limited disclosure of such materials that were before the justice issuing a warrant to decisions finding that the accused is broadly entitled to disclosure of any piece of information that is logically relevant to whether the search warrant ought to have been issued. Justice Campbell points out that the analysis must include a proper balance of three important competing interests:
[20] 1. The accused right to make a full answer and defence and this applies to a pre-trial motion and evidentiary hearing;
[21] 2. Context and practicality. This requires the focus to be on the material issues at the motion of pre-trial application. It is important to ensure that the hearing does not become unwieldy and inefficient, while at the same time ensuring that the disclosure is relevant to the material issue.
[22] 3. Understanding priorities. This interest relates to the limitations on disclosing material that may compromise the anonymity of a confidential informant. This requires that information, of necessity be redacted to protect this most important privilege. It may be that a procedure similar to that employed by Justice Campbell must be put in place in order to provide complete disclosure that ensures a fair trial while at the same time protects the confidential source.
[23] In McKenzie, Justice Campbell points out at para 24 that the Ontario Court of Appeal in R. v. Crevier, 2015 ONCA 619, [2015] O.J. No. 5109, at para 72 stated that before the reviewing court is able to rely upon the original, un-redacted ITO in determining the validity of a search warrant under ‘step six’ of Garafoli, the accused must be made aware of the general nature of the redactions, and his or her awareness must be sufficient to permit the accused to challenge the redacted details both in argument and by evidence.
[24] Justice Campbell further stated at para 33 of McKenzie:
As I have indicated, generally speaking, the investigative file in relation to the accused must include the materials outlining the information received by the affiant about what the confidential informant said about the involvement of the suspect in the alleged offence. Accordingly in cases where the affiant has communicated directly with the confidential informant, the affiants notes of those communications (redacted to protect privilege) should be disclosed to the accused. Similarly in cases where the affiant has been provided with information from another police officer about the confidential informants allegations about the involvement of the suspect in the alleged offence, any documentation passed along to the affiant and or any notes about what information was passed along to the affiant (redacted to protect privilege) should be disclosed to the accused.
[25] In the case before me, it is now clear that the Crown attempted to rely on the affiant in one of the ITOs. The officer in charge of the investigation then expanded the evidentiary base by testifying during the application pursuant to s. 8. That testimony yielded a concern about information that was relevant and never disclosed. The subsequent review by the Crown and further Crown summary only provided additional concern that there remains information not disclosed. In order to ensure a fair hearing there must be confidence that all of the relevant disclosure requirements set out in Stinchcombe and many cases following have been complied with. I am not confident that there can be such confidence as a result of the recent developments demonstrating that disclosure of relevant materials has been somewhat of a shifting sand.
[26] I take a similar approach to this issue to that of Justice Campbell in McKenzie. I order the following to be disclosed by the Crown (redacted to protect privilege):
a. The Source Debriefing Reports (also referred to as Confidential Informant Debriefing Reports);
b. The debriefing and Handler reports and notes as they relate to the investigation of this accused and the charges in this indictment only.
[27] Once the items set out in paragraph 26 a and b have been reviewed by the defence, the defence may bring an application for the Crown to produce to the court an un-redacted version of those reports in order to determine if there is relevant material that is not protected by privilege that should be disclosed.
[28] Counsel are to speak to this matter on February 11, 2016 at 10 am, in order to schedule and seek other directions.
The Honourable Mr. Justice R. J. Harper
Released: February 10, 2016
CITATION: R. v. Knelsen, 2016 ONSC 286
COURT FILE NO.: CR-15-12
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
JOHAN KNELSEN
REASONS FOR JUDGMENT
The Honourable Mr. Justice R. J. Harper
Released: February 10, 2016