Court File and Parties
COURT FILE NO.: CR-15-30000260 DATE: 2016/06/13 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Respondent – and – CRAIG OSBORNE Applicant
Counsel: Andrew Sabbadini, for the Respondent Edward H. Royle, for the Applicant
HEARD: June 8 and 9, 2016
Ruling on APPLICATION TO COMPEL THE CROWN TO DISCLOSE THE IDENTITY OF A WITNESS
DUNNET J.: (Orally)
Background
[1] The applicant is facing charges in relation to the possession of three rifles located by the police on or about July 6, 2014, following the execution of a search warrant at a storage locker located at 375 Middlefield Road, Unit #84, in the City of Toronto (the “storage locker”). The rifles were found in a closed metal box in the storage locker.
[2] The police obtained the search warrant as a result of information from a confidential source, the content of which is referred to in the Information to Obtain a Search Telewarrant (ITO).
[3] The applicant has brought an application asserting that his section 8 Charter rights were violated when the police executed the search warrant. The basis of the alleged violation is that because the ITO was heavily redacted to protect the identity of the confidential source, it failed to provide an adequate basis for the issuance of the search warrant.
[4] The Crown agrees that the ITO, as redacted, no longer discloses a sufficient basis for the issuance of the search warrant. In accordance with step six of R. v. Garofoli, [1990] 2 S.C.R. 1421, and after hearing submissions from counsel, a judicial summary was prepared that provided general information about the redacted evidence in the ITO.
[5] The judicial summary states, in part, that the redacted information consists of the name and nickname by which the confidential source knew the person renting the storage locker. The renter of the storage locker is referred to as “the occupant” and the redacted information relates to a single occupant having access to the storage locker. The ITO, as redacted, does not disclose whether the information provided by the confidential source is first hand or second hand information.
[6] In paragraph 1(b) of the ITO, the un-redacted physical description of the occupant, which was provided by the confidential source is: “male, black skin, 26-28 years old, heavy set, tattoos and a bald head.”
[7] The applicant agrees that he rented the storage locker, but maintains that the description in paragraph 1(b) is not consistent with his physical appearance and that the possessor of the firearms is someone else.
[8] The applicant submits that in order to make full answer and defence, he is entitled to be able to present in evidence at trial the description of the possessor, which was provided by the confidential source. He, therefore, seeks disclosure of the identity of the confidential source pursuant to the “innocence at stake” exception in order that the source may be called as a witness at trial.
The Evidence of Adrian Barned
[9] Adrian Barned testified that he has known the applicant for six years. They both signed the rental agreement for the storage locker.
[10] Mr. Barned described the applicant’s height as six feet two inches and his weight as 160 pounds. He testified that the applicant’s appearance was the same in 2014, but he may have been slimmer. When he was questioned about the man’s build, Mr. Barned said that the applicant was not a heavy set man.
[11] Crown counsel submitted that while the applicant does not appear to be heavy, it is not beyond possibility that he was heavy set in 2014. Crown counsel led no evidence to support this submission, one at odds entirely with the evidence of Mr. Barned. Further, Crown counsel had the opportunity to call evidence to clarify the description provided by the confidential source and chose not to do so.
Legal Principles
[12] In R. v. Leipert, [1997] 1 S.C.R. 281, the Supreme Court of Canada held that the rule of informer privilege is of fundamental importance to the workings of the criminal justice system. The privilege belongs to the Crown, which cannot, without the informer’s consent, be waived, either expressly or by implication. The only exception to informer privilege is the “innocence at stake” exception.
[13] In R. v. McClure, 2001 SCC 14, [2001] 1 S.C.R. 445 at para. 47, the Supreme Court of Canada addressed the innocence at stake exception for solicitor-client privilege and found that the privilege can be infringed “only where core issues going to the guilt of the accused are involved and there is a genuine risk of wrongful conviction.”
[14] The Court held at paras. 48 and 49:
Before the test is even considered, the accused must establish that the information that he is seeking in the solicitor-client file is not available from any other source and he is otherwise unable to raise a reasonable doubt as to his guilt in any other way.
By way of illustration, if the accused could raise a reasonable doubt at his trial on the question of mens rea by access to the solicitor-client file but could also raise a reasonable doubt with the defence of alibi and/or identification, then it would be unnecessary to use the solicitor-client file. The innocence of the accused would not be at stake but instead it is his wish to mount a more complete defence that would be affected. On the surface it may appear harsh to deny access as the particular privileged evidence might raise a reasonable doubt, nonetheless, the policy reasons favouring the protection of the confidentiality of solicitor-client communications must prevail unless there is a genuine danger of wrongful conviction.
[15] In R. v. Brown, 2002 SCC 32, [2002] 2 S.C.R. 185 at para. 4, the Supreme Court summarized the test set out in McClure and held at para. 27 that piercing the privilege should be treated as an extraordinary measure, performed only as a last resort when innocence is at stake.
[16] In R. v. Yakubu, [2006] O.J. No. 4864 (S.C.J.) at para. 20, Corbett J. summarized the test in McClure as it applies to confidential informers:
A) The Threshold Test
To satisfy the threshold test, the accused must establish that:
the information he seeks from the [confidential informant] communication is not available from any other source; and
he is otherwise unable to raise a reasonable doubt.
B) The Innocence at Stake Test:
Stage 1: The accused seeking production of the [confidential informant] communication has to demonstrate an evidentiary basis to conclude that a communication exists that could raise a reasonable doubt as to his guilt.
Stage 2: If such an evidentiary basis exists, the trial judge should examine the communication to determine whether, in fact, it is likely to raise a reasonable doubt as to the guilt of the accused.
It is important to distinguish that the burden in the second stage of the innocence at stake test (likely to raise a reasonable doubt) is stricter than that in the first stage (could raise a reasonable doubt).
If the innocence at stake test is satisfied, the judge should order disclosure of the communications that are likely to raise a reasonable doubt. The onus is on the accused to establish each element of the test on a balance of probabilities [Footnotes omitted.]
Analysis
[17] The threshold test requires that the information sought by the applicant from the communication is not available from any other source and that he is otherwise unable to raise a reasonable doubt.
[18] The description of the occupant provided by the confidential source was “heavy set.” Mr. Barned’s description of the applicant’s physical appearance differs fundamentally from the description provided by the confidential source, which formed part of the grounds for obtaining the search warrant. Mr. Barned’s description of the applicant was not challenged in cross-examination.
[19] If the applicant could have been described as heavy set when he was arrested a few days after the search warrant was executed in 2014, the information would have been known to the Crown or the police and could have been adduced in evidence. The evidence of the physical appearance of the applicant is inconsistent with the description provided by the confidential source.
[20] The Crown’s position is that the physical description provided by the confidential source does not matter because the applicant can testify on his own behalf. The Crown relies on R. v. X (2012), 252 C.R.R. (2d) 303 (B.C.S.C.) where the court held at para. 62:
…I have concluded that in many cases, an accused may be required to testify on his own behalf before informant privilege can be invaded. To rule otherwise could allow invasion of the privilege in almost any case. The inquiry will, however, of necessity, always be fact-specific and based upon the nature of the confidential information at issue.
[21] Without deciding whether the reference in McClure to “available from any other source” may include the applicant, I find that on the particular facts of this case, the information sought is a discrete piece of evidence regarding the physical description of the occupant that does not match the applicant.
[22] The only source of that information is the confidential source. Otherwise, the applicant is not able to raise a reasonable doubt on an essential element of the offence that he was the possessor of the firearms discovered in the storage locker upon execution of the search warrant that was issued upon information provided by the confidential source. Thus, I find that the threshold test is met.
[23] At stage one of the innocence at stake test, the Crown submits that information provided to the handler by the confidential source on the issue of identity is of no evidentiary value. I disagree. The Crown has proffered a description of the occupant as part of the justification for the search warrant. The description in the ITO also provides an evidentiary basis to conclude that a communication exists that could raise a reasonable doubt as to the guilt of the applicant.
[24] At stage two of the test, the Crown submits that although one descriptive element appears not to describe the applicant, it is not determinative of whether the confidential source is referring to someone other than the occupant. Further, the applicant has alternative ways to raise a reasonable doubt as to whether he had exclusive control of the storage locker.
[25] In my view, the Crown misunderstands the issue. The confidential source has provided information about the description of the renter or occupant. The applicant agrees that he was a renter of the storage locker, but that the physical description is not consistent with his appearance. I am satisfied that the information provided by the confidential source is likely to raise a reasonable doubt about the applicant’s guilt as the possessor of the firearms.
[26] In Yakubu at para. 21, the court held:
And so, the threshold for piercing informant privilege turns on whether the evidence is critical to the accused raising a reasonable doubt as to his guilt, and not whether the evidence will affirmatively demonstrate his innocence.
Disposition
[27] Although in his formal application, counsel for the applicant seeks disclosure of the identity of the confidential source, in closing submissions, he proposed an alternative remedy that would protect the identity of the confidential source. He suggested that the physical description contained in paragraph 1(b) of the ITO be put before the trier of fact by way of an agreed statement or other means without calling the confidential source as a witness or identifying the source in any way.
[28] I am prepared to hear further submissions on whether and how the issue of the description provided by the confidential source in the ITO can be placed before the trier of fact without compromising the source’s identity.
[29] Otherwise, I am satisfied that on the discrete issue of the identification of the possessor, the applicant has satisfied his onus. The confidential informant privilege must be pierced and the confidential source may be called as a witness by the defence on the issue of the identification information contained in the ITO.
Dunnet J. Date: June 13, 2016
COURT FILE NO.: CR-15-30000260 DATE: 20160613 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN Respondent – and – CRAIG OSBORNE Applicant ruling on application to compel the crown to disclose the identity of a witness Dunnet J. Released: June 13, 2016