COURT FILE NO.: 1-641541 DATE: 20160524 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – RANDEEP SANDHU, DIMITRI ALEXIOU, PHILPOS KOLLAROS, KULWANT SINGH, WASEEM IQBAL and ASHOK SHARMA Defendants
Counsel: Eric Gilman, David Morlog, and Chris De Sa for the Crown (Public Prosecution Service of Canada) Melanie Webb for the Defendant, Randeep Sandhu Hussein Aly for the Defendant, Dimitri Alexiou Jill Makepeace for the Defendant, Philpos Kollaros Parm Prashad for the Defendant, Kulwant Singh Deepak Paradkar for the Defendant, Waseem Iqbal Yoni Rahamim for the Defendant, Ashok Sharma
RULING J.D. McCombs, j.
Introduction
[1] In this ruling, I dismiss a motion brought on behalf of one of the accused persons, Randeep Sandhu, for an Order compelling the Crown to disclose the identity of a confidential informant, and for a further Order staying the proceedings against Mr. Sandhu.
Overview
[2] This criminal trial involves very serious drug-related charges stemming from the seizure, three years ago, of drugs worth millions of dollars. In all, 71 kilograms of cocaine were seized, along with 3 kilograms of methamphetamine and 300 grams of a restricted drug known as GHB.
[3] The impetus for the investigation was information provided by a confidential informant (“CI”) to a police “handler” attached to Toronto Police Intelligence Services. The information provided by the CI was passed on to Toronto Police Service Major Drug Squad officers, and led to the formation, on or before May 2, 2013, of a project they dubbed Project Odyssey.
[4] On May 6 and 8, 2013, a Project Odyssey undercover team was detailed to conduct surveillance of various individuals. Their surveillance took them from Toronto to the U.S. border at Sarnia and back to Toronto.
[5] Project Odyssey led to the arrests of nine individuals, six of whom are before the court in this trial. On May 6, Toronto police seized 33 kilograms of cocaine allegedly imported by tractor-trailer through customs at the Canada/U.S. border in Sarnia. Subsequent investigation the same day led to the seizure of an additional 28 kilograms of cocaine, 3 kilograms of methamphetamine, and 300 grams of a prohibited drug known as GHB. On May 8, the work of a similarly-constituted surveillance team resulted in the seizure of an additional 10 kilograms of cocaine. Arrests were made on May 6 and 8th, and further arrests were made on July 23.
The Mid-Trial Filing of the Motion to Order Disclosure of the Identity of the Confidential Informant
[6] On April 21, after twelve days of trial and before the Crown had closed its case, Ms. Webb, counsel for Mr. Sandhu, filed a Notice of Motion for a declaration that the CI was either a police agent or a material witness and thus not entitled to identity protection because informer privilege does not apply. The motion also sought an Order staying the proceedings against Mr. Sandhu. The motion was supported by two affidavits, from a student-at-law at Ms. Webb’s law firm and from Mr. Sandhu himself.
[7] Sandhu’s affidavit asserts his innocence on the basis that he believed the items in question were electronics, not cocaine. The basis for his purported belief was information allegedly provided by a man he thought was his friend, whom he identifies by name in the affidavit. Sandhu swears that his friend was with him that day, and is the person referred to by the police surveillance team as “unknown male 1”. The affidavit provides Sandhu’s reasons for his belief that “unknown male 1” was a police agent.
[8] The Crown, mindful of its duty to protect the identity of confidential informants, requested and was granted several days to gather information and to consider the implications of Mr. Sandhu’s motion.
[9] It was eventually agreed among counsel that the trial could continue and that the CI privilege motion could be deferred until the conclusion of the Crown’s case.
[10] The Crown has now closed its case.
[11] Trial fairness requires that Mr. Sandhu and the other accused know the outcome of the CI privilege motion before being put to their election whether they will call evidence in their own defence. [^1] Therefore the accused have not yet been put to their election.
Procedure Undertaken to Deal with the CI Privilege Motion
(a) Motion by the Crown for Summary Dismissal of the CI Privilege Motion
[12] The Crown invoked s. 37 (1) of the Canada Evidence Act to resist disclosure of any information that might tend to identify the CI and argued that the motion should be dismissed summarily. In support of its position, the Crown filed a one-page affidavit from a police officer in Intelligence Services swearing that the CI was not a police agent and that the CI’s identity had not been disclosed to officers who were not part of the intelligence services. In essence, the Crown argument for summary dismissal of the motion was that there was no basis in the evidence before the court that lent an air of reality to the assertion that the CI was a police agent.
[13] After hearing argument, I dismissed the Crown’s application for summary dismissal of Mr. Sandhu’s motion. I ruled that Sandhu’s affidavit, considered in the light of the evidence adduced at trial, provided some basis for the assertion that the CI was “unknown male 1” and that he may have been acting as a police agent. I held that the one-page affidavit filed by the Crown was not sufficient to permit me to make a proper judicial determination of the motion for summary dismissal of the CI privilege motion.
(b) In-Camera Hearing to Determine the Issue of Whether the CI was a Police Agent
[14] Counsel agreed that in light of my ruling, an in-camera hearing must be conducted to determine the issue of whether the CI was acting as a police agent.
[15] In determining how the in-camera hearing should be conducted, I was guided by the principles discussed in R. v. Basi, 2009 SCC 52, [2009] 3 S.C.R. 389, 248 C.C.C. (3d) 257, R. v. Lucas 2014 ONCA 561, [2014] O.J. 3471 (Ont. C.A.), and other authorities referred to in those cases.
[16] The in-camera hearing was conducted at an undisclosed location in the absence of the accused and defence counsel. The only persons present were Crown counsel, the Court reporter (who was sworn to secrecy), the CI handler from Toronto Police Intelligence Services who had sworn the affidavit, and myself.
[17] It was agreed that because defence counsel and the accused would be absent from the court during the in-camera hearing, I had the responsibility to protect the interests of the accused by taking all reasonable measures to ensure fairness. In the exercise of my discretion, I permitted counsel for Mr. Sandhu to provide me with a list of questions proposed to be put to the police Intelligence Services CI handler. I also indicated that because defence counsel would not be present, I would engage in cross-examination as I deemed appropriate in the circumstances. I was not asked to exercise my discretion to appoint amicus curiae and I saw no need to do so. [^2]
[18] The CI handler from Toronto Police Intelligence Services gave evidence in-camera over one and one-half days. A significant portion of his evidence was in response to questions from the court akin to cross-examination. I endeavoured to cover the areas that had been suggested by Ms. Webb on behalf of Mr. Sandhu, and I asked a number of additional questions in order to ensure fairness to the absent accused. A transcript of the in-camera hearing was received and ordered sealed along with all other material considered by me at the in-camera hearing.
[19] I considered the evidence heard at the in-camera hearing and evaluated it in the light of the evidence I had heard at trial, along with the contents of the affidavit of Mr. Sandhu.
[20] I ruled that I was satisfied that the CI was not a police agent and that therefore the police agent exception to informant privilege was not engaged.
[21] In explaining the reasons for my ruling, I am constrained by a real concern that by making specific reference to the evidence of the CI handler, there is a risk that the identity of the CI could be revealed, or that the pool of possible informants would be narrowed.
[22] Crown counsel prepared a “proposed judicial summary” of information received at the in-camera hearing. The document is marked as Exhibit “D” on the CI Privilege Motion. I am advised that the document has been appropriately vetted and the Crown, which bears the responsibility to protect CI privilege, has confirmed that there is nothing in the document that risks identifying the confidential informant.
[23] Exhibit “D” is an accurate summary of some of the evidence of the CI handler and there are no material omissions. It is not appropriate that I discuss the in-camera evidence further.
[24] In concluding that the CI was not a police agent, I was satisfied that there was no agency agreement between the police and the CI. I was satisfied that the CI’s identity was never communicated to the Toronto Drug Squad by the CI handler or by anyone in Intelligence Services. I was satisfied that the CI did not receive direction from the police. Therefore, the CI was not a police agent. [^3]
(c) Open-Court Hearing to Determine Whether the CI is a Material Witness
[25] Counsel agreed that if I were to find that the CI was not a police agent, then it would be necessary to address the “material witness” issue. As noted earlier, Mr. Sandhu’s affidavit swore to his belief that “unknown male 1” was either a police agent or a material witness.
(i) The Applicable Legal Principles
[26] I pause to briefly explain my understanding of the meaning of “material witness” in the context of an application to pierce the confidential informant privilege. Materiality in this context must relate to the innocence at stake exception. If it were otherwise, the sanctity of confidential informant privilege would be illusory.
[27] I reproduce paragraphs 29 and 30 of Named Person v. Vancouver Sun 2007 SCC 43, [2007] 3 S.C.R. 253:
29 For the sake of clarity, it is useful to pause here to explain the law regarding what were argued before us as some "other" exceptions to the informer privilege rule. As already noted, the only real exception to the informer privilege rule is the innocence at stake exception. : Leipert. All other purported exceptions to the rule are either applications of the innocence at stake exception or else examples of situations in which the privilege does not actually apply. For example, situations in which the informer is a material witness to a crime fall within the innocence at stake exception : R. v. Scott, [1990] 3 S.C.R. 979, at p. 996. The privilege does not apply to an individual whose role extends beyond that of an informer to being an agent provocateur : R. v. Davies (1982), 1 C.C.C. (3d) 299 (Ont. C.A.); Hubbard, Magotiaux and Duncan, at p. 2-28. Similarly, situations in which s. 8 of the Charter is invoked to argue that a search was not undertaken on reasonable grounds may fall within the innocence at stake exception: Scott. Thus, as I noted, the only time that the privilege, once found, can be breached, is in the case of an accused raising the innocence at stake exception. All other so-called exceptions are simply applications of this one true exception: Scott, at p. 996; D. M. Paciocco and L. Stuesser, The Law of Evidence (4th ed. 2005), at p. 254.
30 In conclusion, the general rationale for the informer privilege rule requires a privilege which is extremely broad and powerful. Once a trial judge is satisfied that the privilege exists, a complete and total bar on any disclosure of the informer's identity applies. Outside the innocence at stake exception, the rule's protection is absolute. No case-by-case weighing of the justification for the privilege is permitted. All information which might tend to identify the informer is protected by the privilege, and neither the Crown nor the court has any discretion to disclose this information in any proceeding, at any time.
(emphasis added)
[28] For the material witness exception to confidential informer privilege to apply to Mr. Sandhu, he must demonstrate on a balance of probabilities that the alleged CI is likely to be in a position to give evidence that would create a reasonable doubt about Mr. Sandhu’s innocence. He must also demonstrate that disclosure of the identity of the CI is necessary to demonstrate his innocence, because of the principle that a person is not to be condemned when his or her innocence can be proved. [^4]
(ii) Mr. Sandhu Testified on the Motion
[29] In order to evaluate the merits of Mr. Sandhu’s application to remove the confidential informer privilege based on the innocence at stake exception, Mr. Sandhu was examined in-chief by his counsel and cross-examined by the Crown.
[30] I made it clear that any evidence Mr. Sandhu would give on this voir dire could not be considered on the trial proper. I would not be entitled to consider it in any respect in determining the ultimate issue of whether the evidence establishes Mr. Sandhu’s guilt on any of the counts.
(iii) Discussion of the Evidence Regarding the Innocence at Stake Exception to Confidential Informant Privilege
[31] I begin by pointing out that for the most part, the evidence against Mr. Sandhu and the other accused is circumstantial. First, it will be my responsibility to determine what facts have been established. Then, my task will be to determine what inferences may be drawn from the established facts.
[32] Because this is a judge-alone trial and I have the responsibility of making findings of fact based on the evidence adduced at trial, I will restrict my expressions of opinion on Mr. Sandhu’s credibility to those issues that are necessary to deal with this application.
[33] Mr. Sandhu’s evidence suffered from a number of frailties. It is fair to say that it is problematic.
[34] I will first address his evidence concerning the events of May 6, 2013. That is the day police surveillance from Toronto to Sarnia and back led to the seizure of 33 kilograms of cocaine, and later, a further seizure of large quantities of drugs. The essence of Mr. Sandhu’s position is that on May 6, he was just along for the ride, ignorant of the fact that importation of cocaine was involved. He claimed that nothing happened that day that made him think anything more serious than avoiding customs duty on some electronics was involved. When questioned about whether his innocent state of mind changed in light of various events during the day, he claimed that it did not. He repeatedly claimed not to recall details. While loss of memory after three years is to be expected, Mr. Sandhu’s purported lack of memory appeared to be selective—a default position when no other option was available. More than once, he changed his answers when confronted with contradictory evidence. On other occasions, when it suited his narrative, he claimed to have a clear memory, even on points that would likely have seemed trivial at the time.
[35] Mr. Sandhu’s position concerning May 8, 2013 is also that he was ignorant of the fact that cocaine was involved. That day, police surveillance once again led from Toronto to the U.S. border at Sarnia and back, and led to the seizure of 10 kilograms of cocaine. Importantly, Mr. Sandhu’s “friend”, “unknown male 1”, was not even present on May 8. Mr. Sandhu’s explanation for his purported honest belief that he was simply doing his friend a favour by going to Sarnia again to pick up some electronics is simply not believable.
(iv) Conclusion re: Innocence at Stake Exception
[36] I have not been persuaded that the alleged confidential informant is likely to be in a position to give evidence that would create a reasonable doubt about his innocence. The innocence at stake exception therefor is not engaged.
Conclusion
[37] In the result, the application is dismissed.
J.D. McCombs, J.
Released: May 24, 2016
Footnotes
[^1]: See for example, R. v. Deichen, 2005 BCSC 1897, 72 W.C.B. (2d) 36, paras. 7-10. [^2]: See R. v. Basi 2009 SCC 52, [2009] 3 S.C.R. 389 at para 57. [^3]: See R. v. N.Y. (2012) 2012 ONCA 745, 113 O.R. 347 (C.A.), para 122, R. v. G.B., [2000] O.J. No. 2963 (C.A.) para. 10 (leave to appeal refused [2000] S.C.C.A. No. 609). [^4]: See R. v. Basi, [2009] S.C.R. 389 at para. 39, R. v. Liepert, [1997] 1 S.C.R. 281 at paras. 21 & 22.