Court File and Parties
COURT FILE NO.: CNJ 8805 DATE: 2017-03-31 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: Her Majesty the Queen Respondent – and – Phayphiboun Xaysy Applicant
Counsel: Alyssa Bain, Counsel for the Respondent Luigi Perzia, Counsel for the Applicant
HEARD: March 27, 2017
The Honourable Mr. Justice C. S. Glithero
RULING ON PRE-TRIAL APPLICATION FOR DISCLOSURE OF CONFIDENTIAL INFORMANTS
[1] The accused is charged with possession of methamphetamine for the purpose of trafficking contrary to s.5(2) of the Controlled Drugs and Substances Act, and possession of $5,000, knowing it to be the proceeds of property obtained by the commission of the offence of trafficking in a controlled substance, contrary to s.354(1)(a) and 355(b) of the Criminal Code.
[2] Both offences are alleged to have occurred on May 20, 2015 following the execution of a search warrant that day at the accused’s home and the seizure of the drugs and money.
[3] The applicant seeks an order for “the disclosure of the identities of confidential informants 1 and 2, referred to in the Information to Obtain of Louise Stemmler dated May 15, 2015, and their production for cross-examination, or, a stay of proceedings.
Background Circumstances
[4] The applicant has seen fit to rely on documents as the evidentiary foundation for this application, with no objection from the Crown. Those documents include Appendix A to the Application, which is a summary of facts by counsel, a copy of the search warrant and the Information to Obtain, as well as a guilty plea synopsis provided as part of disclosure.
[5] These charges stem from an investigation by the police into suspected drug trafficking activities of the applicant’s brother, Lithouthay Xaysy, referred to throughout as “Ty”. Ty was known to the police to have associated with a Stratford resident, Joseph Wojnowski and the two of them were previously investigated for and convicted of charges involving kilos of cocaine and thousands of ecstasy pills.
[6] In late 2014, Stratford police began a methamphetamine investigation as a result of complaints received indicating that methamphetamine was being sold out of a certain Stratford residence. Ty was observed visiting that Stratford residence.
[7] In March of 2015, Waterloo Regional Police commenced an investigation after receiving information from two confidential informants that Ty was trafficking in multiple kilos of methamphetamine and cocaine in Waterloo Region, and further that he had trafficked in cannabis marijuana.
[8] Police investigation showed that Ty had a criminal record spanning the period from 1993 to 2007, for offences of violence, dishonesty, breaches of court orders, escape custody, weapons offences and trafficking in cocaine. Investigation showed that he was often observed operating or occupying a particular silver Honda which was registered to one Sarath Min of Kitchener.
[9] Both Stratford Police and Waterloo Regional Police conducted surveillance on Ty and on a residence in Stratford out of which the methamphetamine trafficking was believed to take place.
[10] On December 17, 2014, Stratford officers observed the silver Honda to attend at the Stratford residence for approximately an hour and forty minutes and then the vehicle was driven to the home of Ty and this accused in Kitchener on Activa Avenue.
[11] On March 13, 2015, Stratford police observed Ty arriving in the silver Honda at the Stratford house. An hour later he and an unknown male left the house in the Honda. The two travelled to a plaza, where the passenger was dropped off and Ty continued on to an apartment complex, then returned to the plaza, picked the passenger up and then Ty took the passenger back to the Stratford house, which was the subject of the Stratford investigation.
[12] On April 1, 2015, Waterloo Regional Police observed the silver Honda at the Activa Avenue address in Kitchener.
[13] On April 14, 2015, Waterloo Regional Police observed Ty leave the Activa Avenue residence and leave in the silver Honda, then return with a female, and then leave again approximately an hour and a half later, and then return home again an hour after that.
[14] On April 21, 2015, police observed the Honda at the Activa Avenue address, observed a female leave that location in the Honda, and then return 7 minutes later. In the interim, the female had been observed at a different Kitchener address given as Ty’s home address on his driver’s licence.
[15] On May 5, 2015, Stratford police observed the Honda parked in front of a Downie Street address in Stratford. Minutes later police observed Tim Flood arriving and parking beside Ty’s Honda and entering the Downie Street house. Twenty minutes later Ty, Wojnowski and his female surety left the home, went to another home, and then returned to Downie Street where Ty dropped off the other two.
[16] On May 6, 2015, Waterloo Regional Police observed the vehicle driven the day before by Tim Flood. A male got out of the vehicle a short distance away from Ty’s residence in Kitchener and the vehicle then left. The male walked to Ty’s home on Activa Avenue and stayed there for 23 minutes. That same male then left the residence and walked to a nearby intersection where he then entered the same vehicle that had earlier dropped him off. Joseph Wojnowski had on an earlier occasion been observed to be a passenger in that same vehicle. Wojnowski had charges pending for weapon offences and possession of methamphetamine. Wojnowski also has a criminal record for dishonesty, violence, drug and firearm offences.
[17] The Waterloo Regional police officer compared a known photograph of Wojnowski to the male he observed go to the Activa Avenue address and noted there were similarities, but he could not conclusively say they were the same person.
[18] That same Waterloo Regional police officer expressed the opinion that his experience showed it to be unusual for someone to be dropped off and then picked up at two separate locations a short distance from their intervening destination. He expressed the belief that this behaviour was to avoid detection of the vehicle and its occupants by police who had surveillance at the Activa Avenue address because of their belief that Ty was a known drug trafficker. The officer expressed the belief that Wojnowski went to the Activa Avenue address on May 6, 2015 to buy drugs.
[19] Also on May 6, an hour and ten minutes after the person believed to be Wojnowski left the Activa Avenue address, police observed Ty leave that same address in the Honda vehicle with a female and travel to the other Kitchener address shown at one time as being the home address of Ty on his driver’s licence. Ty then returned 12 minutes later with Sarath Min at the Activa Avenue address.
[20] On May 15, 2015, Waterloo Regional Police observed Wojnowski to get out of a vehicle at an intersection nearby the Activa Avenue address, to walk to that address and then 42 minutes later to leave the address and walk to another nearby location where he was picked up by the same vehicle as had earlier dropped him off. The Waterloo Regional police officer again opined that Wojnowski was attending Ty’s residence to purchase drugs, but had not been taken directly to the residence, or picked up directly at the residence, so as to avoid detection by police who had the house under observation.
[21] On May 19, 2015, Wojnowski’s girlfriend was arrested in possession of 62 grams of methamphetamine.
[22] On May 20, 2015, Waterloo Regional Police observed Ty in and about the Activa Avenue address during the morning and early afternoon. At 1:35 p.m. a white male was observed arriving in the Pontiac vehicle earlier observed to have been driven by Flood. That male entered the house on Activa Avenue and then 3 minutes later left, returned to the vehicle, and travelled towards Stratford.
[23] On May 20, 2015, Stratford police observed Flood, driving the Pontiac vehicle, to arrive at the residence of Wojnowski in Stratford. Flood was arrested when he arrived and was found to be in possession of 3.5 grams of methamphetamine as well as 3.5 grams of marijuana.
[24] The affiant in the ITO swore to the belief that Flood attended Ty’s residence to purchase speed and marijuana, and that Flood did not employ the same caution as Wojnowski had, as Flood arrived, purchased, and left quickly whereas Wojnowski was dropped off and picked up away from the Activa Avenue address.
Evidence Concerning Confidential Informants
[25] Both confidential informants involved in this case are registered with the Waterloo Regional Police Service. Both received monetary consideration for their informant activities. Both have been informants for some period of time, and have provided information believed by the police to be reliable and which information the police believe to be largely corroborated by independent police investigation, in this case largely by surveillance. In the case of both confidential informants, serious bodily harm or death are believed to be of concern if their identity became known.
[26] What is known of the information supplied to the police by confidential informant #1 in the Winter of 2014 is: (a) Ty is selling large amounts of cocaine, weed and methamphetamine; (b) Ty is selling kilos of cocaine throughout Waterloo Region; (c) Ty drives a silver Honda; (d) Ty lives at the Activa Avenue address.
[27] Confidential informant #1 is also said to have supplied essentially the same information, again, to the police in the Spring of 2015. In addition, confidential informant #1 advised the police that purchasers would come to Ty’s house on Activa Avenue to buy drugs and that Ty would have them come into the house and stay.
[28] Confidential informant #2 advised police in the Fall of 2014 that: (a) Ty was selling large amounts of marijuana, methamphetamine, coke and some heroin.
[29] The affiant in the Information to Obtain swore that she believed the two confidential informants each obtained the information they provided about Ty as a result of direct contact with him. No further particulars are provided in terms of whether their information was obtained as a result of what Ty said to them, what they heard Ty say to others, or what they may have observed as a result of being present when the described events took place.
[30] Confidential informant #1 advised his police handler that Ty would have buyers stay at his house for a while so that neighbours would think it was just people who were visiting.
[31] At 4:30 p.m. on May 20, 2015, Ty was arrested for trafficking in a controlled substance and possession for the purpose of trafficking, after being found in possession of three cell phones on the basis of the investigation to that date.
The Evidence of the Search
[32] The applicant was in the home on Activa Avenue in Kitchener when it was searched on May 20, 2015. Also present were his mother and father, a sister and her three children.
[33] During the search of the home, found in a bedroom admitted on this application to be that of the applicant, the police found, in a closed suitcase at the bottom of a closet, 125.9 grams of methamphetamine in a Ziploc bag, and 338 ecstasy pills in a Ziploc bag. Also found in a dresser drawer located in the closet was the sum of $5,000 in Canadian currency.
[34] Also found during the search in the bedroom of the applicant was a red metal box containing a spoon, glass and a digital scale.
[35] In the basement of the home, inside a blue storage box, police found 371.8 grams of methamphetamine in a Ziploc bag and 265.1 grams of methamphetamine in another Ziploc bag.
[36] No fingerprints were found on any of the above items.
[37] The applicant, his brother Ty, and their mother and father were all jointly charged with these offences. The applicant was committed for trial. His parents and his brother were discharged at the preliminary hearing.
[38] The defence theory here, as disclosed on the application, is that the drugs, the scales and the money found in his bedroom were not his and must have been put there by someone else. The evidence indicating that his brother Ty was trafficking is essential to his defence in that it is much more likely that a person shown to be a trafficker in these drugs would be the person who possessed them in the family home. The thrust of this application is that the disclosure of the identity of and the production of the confidential informants for trial is necessary and overrides the privilege which exists in favour of confidential informants.
[39] There is no mention of the applicant during any of the police surveillance evidence, nor in the information provided by the confidential informants. The only evidence with respect to this applicant is his presence in the home at the time it was searched, and the drugs, money, scales and baggies found.
Legal Principles
[40] The Supreme Court of Canada decision in R. v. Leipert, 1997 SCC 367, [1997] 1 S.C.R. 281 sets forth many of the principles applicable to police informer privilege. That too was a drug case in which the informer information sought to have disclosed related to information that formed part of the contents of the Information to Obtain the search warrant pursuant to which the cultivation operation was discovered. At para. 9, the court noted that informer privilege is an “ancient and hallowed protection which plays a vital role in law enforcement … the rule of informer privilege was developed to protect citizens who assist in law enforcement and to encourage others to do the same.”
[41] Within para. 10, the court adopted one of its earlier pronouncements that “the role of informers in drug-related cases is particularly important and dangerous. Informers often provide the only means for the police to gain some knowledge about the workings of the drug trafficking operations and networks … the investigation often will be based on a relationship of trust between the police officer and the informer, something that may take a long time to establish. The safety, indeed the lives, not only of informers but also of the undercover police officers will depend on that relationship of trust.”
[42] The court also clearly confirmed that the rule of informer privilege is not a matter of judicial discretion, as once it is established, neither the police nor the court have a discretion to abridge it. The privilege belongs to the Crown but cannot be abridged without the informer’s consent. The court acknowledged and adopted statements in prior cases to the effect that it is not only disclosure of the name of the informant, but also of any information which might implicitly identify the informer which is protected, and the court acknowledged that it may well be the smallest of details that would be sufficient to reveal the informant’s identity.
[43] The court affirmed that the only exception to informer privilege is that of the “innocence at stake” exception.
[44] Of significance to the case at bar, the court in Leipert considered as an example of where the innocence at stake exception might arise would be one “where there is evidence suggesting that the goods seized in execution of the warrant were planted. To establish that the informer planted the goods or had information as to how they came to be planted, the accused might properly seek disclosure of information that may incidentally reveal the identity of the informer.”
[45] The Supreme Court of Canada again visited the issue in R. v. McClure, 2001 SCC 14. It did so in the context of the solicitor-client privilege but held at para. 46 that the innocence at stake test is appropriate in adjudicating a request to set aside solicitor-client privilege. The court held that the innocence at stake test is a stringent one only to be used as a basis to breach solicitor-client privilege where there is a genuine risk of wrongful conviction (para. 47) and that before the test is even considered “the accused must establish that the information 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” (para. 48).
[46] At para. 50, the court directed that a two-stage process be employed. At the first stage the accused seeking access to the privilege communication “must provide some evidentiary basis upon which to conclude that there exists a communication that could raise a reasonable doubt as to his guilt”. If successful to that extent, then para. 51 provides that the trial judge must be satisfied that the communication “is likely to raise a reasonable doubt as to the guilt of the accused”, obviously a more strict test.
[47] At para. 53, the court emphasized that the applicant must demonstrate an evidentiary basis for the claim that the sought after communication is relevant to his defence and that mere speculation is insufficient.
[48] In R. v. Brown, 2002 SCC 32, the court again visited the innocence at stake exception and formulated the two-stage innocence at stake test at paragraph 4 as follows:
To satisfy the threshold test, the accused must establish that:
- the information he seeks from the solicitor-client communication is not available from any other source; and
- he is otherwise unable to raise a reasonable doubt.
If the threshold has been satisfied, the judge should proceed to the innocence at stake test, which has two stages:
- Stage #1: the accused seeking production of the solicitor-client 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 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, in accordance with the guiding principles discussed infra.
[49] In Brown, the court concluded that the evidence of a jailhouse informant who purported to overhear a conversation between the accused and a third inmate ought not to have been ordered disclosed as there was other evidence available to the accused. This included the evidence of a former girlfriend of another man who advised the police the other man in fact had committed the murder. In addition, there was physical evidence seized from the accused’s apartment and admissions made by the accused during a police interview.
[50] At para. 35, the court noted that an applicant accused should only succeed “on the threshold question if the accused does not have access to other information that will be admissible at trial.” The court further held that the motion judge in the Brown case had erred in prematurely concluding that the “other” evidence, namely the alleged confession of the other male to his then girlfriend, might well be inadmissible. It was held that a conclusion that such evidence might potentially be inadmissible at trial was not sufficient to justify a breach of the privilege. The court noted the issue might best be decided at the end of the Crown’s case, or even during the defence case at trial, and that the trial judge would be in a much better position at that stage to evaluate whether the evidence sought is available in any other admissible form, and to evaluate whether the accused’s innocence is really at stake without the sought after privileged information.
[51] Importantly in the circumstances of the case at bar, in Brown at para. 70 the court made it clear that the requirement for the accused to demonstrate that the information sought is not available from any other source simply refers to any other evidence that is admissible, and is not qualified by the reliability of the source or the quality of that source’s evidence. And at para. 72, the court made clear that the sought after privileged information is not to be ordered simply to bolster or corroborate evidence that is otherwise available to an accused.
[52] Defence counsel relies heavily on the decision in R. v. Yakubu, 2006 ONSC 40783. The factual situation was much like that in this case. Drugs were found in the accused’s bedroom dresser as a result of the execution of a search warrant aimed at another person with whom the accused shared the apartment. There, the confidential informants had advised the police that the other man was a drug dealer “who secretes his drug supply in places where it will not be linked to him.” As in this case, the Information to Obtain did not mention Mr. Yakubu, but only the roommate.
[53] The defence was the same, namely that the drugs belonged to the roommate and had been planted in the accused’s bedroom. The trial judge in that case was unwilling to accept that the accused’s denial, standing on its own, would be sufficient to establish his innocence or a reasonable doubt with respect to that (paras. 26 and 27) and was satisfied that the accused’s chances of raising a reasonable doubt with respect to his innocence was greatly strengthened by the information from the confidential informant to the effect that the roommate hid the drugs so as to deflect suspicion from him. The informer privilege was ordered breached in that case.
Analysis
[54] In the circumstances of this case, I am not satisfied that the applicant has met the requirements of the threshold test. Unlike in Yakubu, there is no suggestion in the evidence before me to indicate that the confidential informants have any information as to where the drugs were kept in the Activa Avenue house, or as to who put the drugs in the accused’s bedroom. What is known of the informants’ information is that they, and particularly informant #1, has evidence that Ty is a drug trafficker, particularly in methamphetamine.
[55] While evidence that Ty is a drug trafficker is not as directly relevant to the finding of the drugs in the accused’s bedroom, as was the informants information in Yakubu, I accept that it still has relevance to the applicant’s defence, in that as a matter of logic it seems more likely that a proven drug trafficker would have drugs in a residence than would another occupant who does not traffic.
[56] But I am not satisfied that the information indicating that Ty is a drug trafficker is not available to the accused from other sources. At least at this juncture of the proceeding that proposition has not been established. Other sources of that information with commentary, are as follows: (a) The applicant himself. There is no evidence from him in the application before me. While defence counsel protests that the suggestion an accused is able to testify on his own behalf at trial violates his Charter rights, in my opinion there is nothing to prohibit the applicant from providing evidence on this pretrial motion. The evidence is that he lives at that house. He may well have evidence as to having observed his brother trafficking in drugs. He may have evidence that he was not even in the house at the time that Mr. Flood appears to have made his purchase. He may have evidence relating to having seen such drugs in his brother’s possession. He may have evidence relating to the degree of access his brother had to the applicant’s bedroom, and particularly to the suitcase containing the drugs in the bedroom closet. He may have evidence as to whose drugs were found in the basement. (b) His brother Ty. Ty has been discharged at a preliminary hearing into these charges. Ty has protection of s.13 of the Charter. Ty is the accused’s brother and arguably at least would have an interest in testifying so as to clear the applicant from unjust accusations by admitting ownership of the drugs and money and to have secreted the drugs and money in the accused’s bedroom so as to divert suspicion from himself. (c) The mother and father of the applicant would be available to testify and may well have useful information, being residents of the house, to indicate that Ty was dealing in methamphetamine and the accused was not, and information as to the extent of Ty’s access to the accused’s bedroom, and information as to the ownership or possession or utilization of the storage container in part of the basement. (d) The applicant would have available to him evidence of both the Stratford police officers and the Waterloo Regional police officers who conducted the surveillance on many occasions and provided evidence as disclosed in the Information to Obtain, over and above what was indicated as information coming from the confidential informants. Similarly, the evidence of those officers as to the absence of any suspicious observations as to this applicant would be of assistance. Similarly there is the police evidence as disclosed in the Information to Obtain as to the belief that longer stays were encouraged to make a visitor less suspicious, and observations as to visitors being dropped off and picked up at remote locations is a technique used to avoid suspicion, all of which the officers have already sworn to as part of their experience. (e) The female Sarath Min was with Ty on numerous occasions according to the surveillance evidence, shared a residence address with Ty for at least some period of time, and may well have information concerning Ty’s drug dealing activities. (f) Mr. Flood appears likely to have evidence as to the identity of the person from whom he purchased the methamphetamine with which he was caught. (g) Mr. Wojnowski is presumably susceptible to a subpoena and thus available to be questioned as to his knowledge of drug dealing activity on the part of the applicant’s brother.
[57] I emphasize that there is no evidence before me on this application to indicate anything about the availability, lack of availability, cooperative nature or lack of cooperative nature or any other form of obstacle that prevents the applicant from seeking information from such persons. It seems likely that such evidence could confirm the defence theory that Ty was the drug dealer, and hence that it is more likely that the drugs found in the accused’s bedroom were those of his brother, hidden by the brother in the accused’s bedroom to avoid suspicion. The police officers from Stratford and Waterloo Region would seem likely to give their evidence willingly.
[58] Mere assertions by counsel that those people may not be available, or that he may not be able to find them, or that they may be uncooperative if found, are all matters of conjecture, at least at this stage of the proceeding. On an application to breach such an important class of privilege, evidence is required, not merely conjecture.
[59] There is no reason to believe that the confidential informants could provide information, if the application succeeded, that Ty hid the drugs in the applicant’s bedroom and this distinguishes the case from Yakubu. It may be that once into the trial, or even into the defence, the applicant may be able to meet the two-stage test, but in my assessment at this stage, he falls quite short.
[60] I also point out that the application before me does not include an attack on the sufficiency of the search warrant, as part of a s.8 application.
[61] For these reasons, on the application materials as they exist before me, the application is dismissed. This will be without prejudice to another application, on proper evidence, at some later stage of the trial, if the circumstances so warrant.
C. Stephen Glithero J.