CITATION: R. v. Aulenback, 2016 ONSC 6840
COURT FILE NO.: CR-15750
DATE: 20161108
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Kyle Aulenback
Accused/Applicant
Denys R. Bradley, for the Crown/Respondent
Reid D. Rusonik, for the Applicant
HEARD: October 28, 2016
RULING ON CHARTER APPLICATION
GAUTHIER J.:
The Application
[1] The accused, Kyle Aulenback (“Aulenback”), has brought an application for disclosure of “the contents of the investigative file compiled and considered by the affiant for two Informations to Obtain (I.T.O.). At the hearing of the application, Aulenback specified that he seeks disclosure of the following:
a) The handwritten notes of S/Sgt. Asunmaa provided to the Affiant, R.C.M.P. Officer David Burns on July 9, 2013;
b) The handwritten notes of S/Sgt. Asunmaa provided to the Affiant, Officer Burns on October 15, 2013.
These handwritten notes relate only to informant A. They were referenced in the material in support of the applications for the authorizations, and relied upon by the affiant Burns.
Facts
[2] A recitation of the facts was contained in my ruling given orally on September 8, 2016, which denied Aulenback’s application to exclude cellular telephone records, vehicle rental information, and evidence yielded from the tracking and/or number recorder orders.
[3] The matter was adjourned to October 28, 2016, to set a date for trial however, in the interim, Aulenback has brought this application for disclosure.
[4] Although there is currently no application to exclude evidence, it is my understanding that Aulenback intends to bring such application to exclude the evidence found as a result of a warrantless search of Aulenback’s vehicle sometime after the production orders, tracking and number recorder orders were made.
Aulenback’s Position
[5] Aulenback refers me once again to the specific words utilized in the I.T.O. of August 1, 2013, and the I.T.O. of October 30, 2013, touching on the information provided by the confidential informants (“Confidential Informants”) that “unless otherwise stated, the information provided by this informant is based on personal knowledge.”
[6] In my September 8, 2016, ruling I noted that “information based on personal knowledge” implies direct knowledge, but does not equate with “firsthand knowledge”. I found it to be more than a bald or mere conclusory statement, and I found it to have sufficient texture and detail to make it reasonably compelling. I also was satisfied as to the credibility of the Confidential Informants.
[7] The only stated reason Aulenback seeks access to the handler’s notes is to determine whether the information provided was first hand: “These documents will detail whether or not the information the informants provided was obtained from first hand observation and/or whether any words they related were spoken to them by the targets of the investigation themselves.” (paragraph 2 of Aulenback’s Notice of Application.)
[8] Aulenback asserts that if the information was not firsthand information, then the Crown will be unable to establish the constitutionality of the search.
Crown’s Position
[9] The fact that information conveyed by an informant may not be firsthand information does not, in and of itself, mean that the information is not compelling; nor does it, in and of itself, mean that any subsequent warrantless search is invalid or unreasonable.
[10] The Crown advised Aulenback and the Court, on the record, that the information was firsthand information. The Crown will be providing Aulenback with an affidavit to that effect.
[11] The Crown asserts privilege and opposes the application as the pool of people who could have provided the information is very small, and any further information disclosing the exact source of knowledge and/or exact conversations the Informant had with Aulenback, Boudreau, and/or Fox and other information which would be contained in the handler’s notes (i.e. gender, lifestyle choices, associates…) could disclose the identity of the Informant. The Crown reminds me that informer privilege is absolute and the scope of the privilege is extremely broad.
[12] The only exception to the informer privilege rule is the “innocence at stake” exception. The rule also trumps the right to make full answer and defence or the right to disclosure.
[13] Despite his submissions, Aulenback will not arrive at the hearing of the intended application to exclude, “empty handed.” The I.T.O.s disclosed a significant amount of information about the Confidential Informants:
a) Confidential Informant A: (a) has provided information to the handler in the past; (b) has no record for dishonesty related offences; (c) is motivated to provide information for either monetary compensation or for assistance with his/her own criminal charges; and (d) has provided information to police on 9 occasions in the past,7 of which led to street arrests where the drugs were seized, and 2 of which led to CDSA search warrants where drugs were seized, leading to charges and convictions.
b) Confidential Informant B: (a) has the same handler as Confidential Informant A; (b) has provided information in the past; (c) has not convictions for dishonesty related offences; (d) is motivated to provide information for either monetary compensation or for assistance with criminal charges; and (e) has provided information on 5 occasions which led to street arrests where drugs were seized, on 6 occasions which led to CDSA search warrants, and on 3 occasions which led to Criminal Code search warrants for stolen property.
[14] The Crown submits that the information sought is irrelevant. It will not assist Aulenback in any way at the trial proper as it relates to disputing the essential elements of the offence of possession for the purpose of trafficking. (This submission ignores the fact that defence counsel has stated, on the record, that there will be no “trial”; what there will be is the evidentiary hearing to determine the lawfulness of the detention and search of Aulenback and the vehicle he was operating at the time. That hearing will not be about the Crown proving the essential elements of the offence.)
[15] As well, the Crown relies on R. v. Ahmed, [2012] O.J. no. 6643 for the proposition that an accused is not entitled to information about what the confidential sources told their handler, as this falls outside of the investigative file. As such, any presumption of relevance is “significantly attenuated.”
Analysis
[16] I did, further to Aulenback’s earlier application challenging the validity of the Production Orders, Tracking and Number Recorder Orders, consider and determine the reliability of the Informant, as well as determine that the information provided by the Informant was reasonably compelling. That was part of the exercise of determining whether or not the authorizing Justice had evidence before him or her establishing that there was reasonable and probably grounds to grant the orders sought. I determined that the issuing justice did in fact, have sufficient evidence to establish a reasonable and probable belief that Aulenback had or was about to commit the indictable offence of possession for the purpose of trafficking.
[17] The assessment of the value of the information provided has already been done by me. I concluded that the information was reasonably compelling, it was credible and it was corroborated. This is within the “totality of the circumstances” inquiry mandated by R. v. Debot.
[18] The determination of the validity of the subsequent detention and search of Aulenback will take into account the information provided by the Confidential Informants as well as an evaluation of any corroboration in determining whether or not police had reasonable and probable grounds to believe that Aulenback was committing or was about to commit the offence with which he is charged.
[19] While Aulenback may have been entitled to the handler’s notes (redacted to protect the identity of the informant) for the purposes of the earlier evidentiary hearing (challenging the validity of the production and other orders), he is no longer entitled to them now that the issue of the value of the information to which the notes were relevant has been decided. Simply put, now that the Garafoli type application has been determined, there is no longer any context in which the handler’s notes sought in this application for disclosure are relevant.
Conclusion
[20] The application is denied.
[21] As I recall, the matter is currently next returnable on December 20, 2016. As the application for disclosure is now complete, there is no reason to no bring the matter forward, from December 20, 2016, to set a date for the final step in this case. Accordingly, I am adjourning the matter to the November 15th Assignment Court to set a date for the hearing of the issue of the validity of the search.
The Honourable Madam Justice Louise L. Gauthier
Released: November 8, 2016
CITATION: R. v. Aulenback, 2016 ONSC 6840
COURT FILE NO.: CR-15750
DATE: 20161108
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
Kyle Aulenback
Accused/Applicant
RULING ON CHARTER APPLICATION
Gauthier, J.
Released: November 8, 2016