Court File and Parties
COURT FILE NO.: 1757/14 DATE: 20170109 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN – and – Sharon Marie Stockton Defendant
Counsel: Michael Robb, for the Department of Public Prosecution J. Scott Cowan, for the Defendant
HEARD: January 9, 2017
Raikes J.
Reasons for Judgment
Introduction and Background
1The defendant, Sharon Stockton, stands charged with possession for the purpose of trafficking crystal methamphetamines contrary to section 5(2) of the CDSA. Following arrest and transport to Sarnia police Station, Ms. Stockton turned over to police a bag containing crystal methamphetamine.
2A voir dire was held on January 4, 2016 to determine whether the police had reasonable and probable grounds for arrest on November 14, 2012. Ms. Stockton was then represented by different counsel. I released my decision on February 29, 2016 (see 2016 ONSC 1408).
The Defendant's Application
3The defendant applies to re-open the voir dire. She also applied for disclosure of the notes of the Confidential Informant (CI) Handler, Detective Constable Ivan Skinn. Recent case law in 2016 changed the law as it relates to the disclosure of a CI Handler’s notes. Crown counsel advises that he asked for those notes immediately upon receiving the defendant’s application in early December, 2016. The notes were provided to the defendant’s current counsel on Friday, January 6, 2017.
[4] The defendant argues that: a. the recently produced notes add additional information that, if known, could have been used in cross-examination of Detective Constable Skinn; b. Detective Constable Skinn did no follow-up of the CI which gives rise to a danger of mishandling of information; c. it is not possible to know that the CI actually exists and is reliable absent proof of an established protocol used by Sarnia Police for handling CIs; and d. the CI is not entitled to the protection afforded by confidential informant privilege because the CI in this case is a material witness.
5Defence counsel indicated that the defendant does not challenge the correctness of the earlier ruling; rather, the defendant relies upon the new disclosure together with copies of protocols from the Ontario Provincial Police and Solicitor General’s office for handling CIs. The defendant also relies upon para 8 of the decision of Justice Trafford in R. v. Eagle, [1996] O.J. No. 2867 (Ont. C.J. (Gen. Div.)) with respect to the need for appropriate protocols and the dangers inherent in the reliability of evidence allegedly obtained from a CI when those protocols are not followed.
The Crown's Position
[6] The Crown’s position is that: a. the confidential informant in this case is not a material witness; b. the defendant has not placed in issue the innocence at stake exception to informer privilege; c. the information contained in the notes taken by Detective Constable Skinn mirror the information in his will say and the evidence he gave during the voir dire. There is no new significant evidence nor is there anything in those notes that casts doubt on the reliability of the CI.
Analysis of the CI Handler's Notes
7In his will say statement, Detective Constable Skinn indicated that within the past 72 hours, the CI had observed the defendant at the apartment of John Dobbie during which time the informer saw Mr. Dobbie was in possession of a large quantity of crystal methamphetamine. The CI observed a sale of a large quantity of crystal methamphetamine to Sharon Stockton. According to Detective Constable Skinn’s will say statement, he further indicated that the CI had observed Ms. Stockton purchase methamphetamine from Dobbie on numerous occasions. Detective Constable Skinn’s evidence on the voir dire was consistent with his will say statement although he made clear that he had vetted the will say statement so as to protect the identity of the confidential informant.
[8] The handwritten notes made by Detective Constable Skinn and produced to the defendant on January 6, 2017 state:
- “Provides information re-John Dobbie
- Living @ 174 Christina St. N.
- Upstairs apartment – doorway to street level
- Selling crystal methamphetamine
- Observed several ounces out. Dobbie preparing for sale to Sharon Stockton – “Shar”
- Sold approx.. 1.2 ounce to Stockton. $ exchanges- unknown amount. No discussions re-: how much. Obviously an understood price. Stockton attends there several times a day. Sole purpose for attending is to buy drugs which she in turn sells. Does not attend to visit. If she is there she is buying drugs. Usually gets [illegible] or ¼ to a ½ ounce.
- Has observed Stockton buy drugs from Dobbie approximately 5X.
- When she leaves she will have drugs.
- Does not conceal – very carless.
- Dobbie also selling to Craig Moore. Moore attended on today’s date and purchased crystal. Moore went into washroom prior to leaving.
- Dobbie keeps in bathroom. Will have up to 6 ounces @ a time. Reloads every couple of days. Stockton buys most of Dobbie’s supply. Dobbie gets from Muscat.”
9Defence counsel noted that there is no reference to “within 72 hours” in the notes made by Detective Constable Skinn. He does not take issue with that addition as that is the sort of thing one would expect when trying to protect the identity of the CI.
10I observe that Detective Constable Skinn was vigorously cross-examined by defence counsel who appeared both skilled and knowledgeable. I do not see anything in the notes that is at odds with the information that was imparted by Detective Constable Skinn in his will say statement and his evidence on the voir dire. To the extent additional details are provided they are limited - eg. 5x vs. numerous times; large quantity vs. ½ oz. - and fit within what would be expected to protect the CI’s identity.
The Protocols and the Eagle Decision
11With respect to the existence or non-existence of protocols for handling confidential informants, no questions were asked of Detective Constable Skinn or Constable Vansickle. There is nothing in the recently provided notes that, on its face, makes the existence of and compliance with a CI handling protocol an issue.
12The Eagle decision is a 1996 decision dealing with a search warrant that was obtained based on information allegedly obtained from a CI. In that case, there was evidence that the Metropolitan Toronto Police Services had internal rules and regulations about the handling of police informants. Those rules and regulations are set out in some detail at para 8 of the decision. The Detective Constable who swore the affidavit in support of the search warrant did not follow those rules and regulations. Justice Trafford wrote at para 8:
“These rules were not complied with in this case – compliance was, at best, sporadic. No number was assigned to this confidential informant. Forms to be completed upon the payment of money to the informant were not signed by him or her in any instance where they were filled out. Notebooks of supervising officers did not include the required entries for meetings with the informant. The informant file is incomplete. With the absence of these forms and notes there is no independent documentation of the history about the dealings with this informant. The safeguards required by the Metropolitan Toronto police services were deliberately and intentionally undermined by the practices of Detective Constable Brammall. He knowingly created a situation where any review by the prosecutorial authorities or the court of the existence of this informant or the history of the dealings with him was fundamentally and exclusively dependent upon his word and credibility. Moreover, the assessment of his credibility was further undermined by the note taking practices he used in this case. They, too, were sporadic and incomplete. No informant number was recorded in them. Informant reports were not properly completed and filed. Information he believed may assist the defence was not recorded. Those instances when the information disclosed to him by this person was found to be unreliable were not recorded. …”
13At paras 10 and 11 of the decision, Justice Trafford noted that the relationship with the informant was such that there were no adverse consequences for the disclosure of false or unreliable information. Further, the informant actually had a substantial criminal record that included 12 convictions for crimes of dishonesty, five prior convictions for offences against the administration of justice including attempting to obstruct justice and failure to appear in court as well as a significant number of other instances where such charges were withdrawn. None of that information was set out in the information to obtain.
14The decision in R. v. Eagle is readily distinguishable. There is no indication of any evidence of non-compliance with any protocol for dealing with confidential informants. That line of inquiry was never pursued by previous counsel nor do the recently produced notes suggest that result. In addition, there is nothing before me that casts into doubt the reliability of the information provided by the CI. The CI’s criminal record was disclosed as part of Detective Constable Skinn’s evidence at the voir dire and certainly did not include the litany of convictions against the CI in the Eagle case, nor did those charges involve matters of dishonesty or interference with the administration of justice.
15Simply put, there is nothing in the material or submissions before me that gives rise to even a faint apprehension that the credibility and reliability of the CI should now be in doubt. Similarly, there is nothing in the material or submissions before me that suggests that the officers involved engaged in conduct designed to insulate the CI, to buttress the reliability of the CI, or withheld material information concerning the CI or investigation.
Informer Privilege and Material Witness
16I turn now to the submission that the CI’s identity ought to have been disclosed as the CI in this case is a material witness.
17The defendant argued that the CI in this case is a material witness as he or she is said to have observed Ms. Stockton buy the drugs for which she is charged and indicated to police that she was selling those drugs.
18There is a recognized exception to the confidential informant privilege – innocence at stake exception. It is unnecessary for me to delve into the nuances of the law relating to innocence at stake exception because the information before me simply does not support the possibility that that exception is engaged.
[19] I observe that: a. the information provided by the CI did not tie or connect Ms. Stockton to the specific drugs that were found on her person following her arrest on November 12, 2013; b. the CI had observed Ms. Stockton purchase crystal methamphetamine from Mr. Dobbie approximately five times at Mr. Dobbie’s apartment; c. the CI witnessed the exchange of money for drugs with no negotiation over price; d. this is not a case where the CI called police to say that Ms. Stockton had just made a purchase and had the drugs on her; rather, the information was that she was buying drugs from Mr. Dobbie at that location and that was the only reason she would be at that location; e. the Crown does not rely in any way on the statement made by the CI that Ms. Stockton was a reselling the drugs to establish proof that she was, in fact, trafficking in crystal methamphetamine. The Crown relies only upon its expert witness who testified that the quantity in Ms. Stockton’s possession was inconsistent with that of a mere user and was entirely consistent with someone trafficking in this controlled substance.
20There is nothing to indicate that the CI in this case is a material witness to the crime or was an agent provocateur.
21There is also no suggestion in the submissions made by counsel that the evidence of the CI is relevant to a defence which the defendant wishes to advance such as in R. v. Taylor, 2012 ONSC 6673. There is nothing on the record before me or in the submissions of counsel that indicates that this is one of those cases where it is necessary in the interests of justice for this accused that the name of the CI be disclosed.
Re-opening the Voir Dire
22In the context of a decision to allow for a second bail application pending appeal, Doherty J.A. in R. v. Daniels (1997), 119 C.C.C. (3d) 413 wrote for a unanimous court setting out the narrow circumstances when further or refined legal arguments may justify a rehearing:
“Usually, subsequent applications based on an alleged change in circumstances depend upon some events which occurred between the initial application and the subsequent application. On occasion, subsequent applications are brought when a part of the trial record becomes available and add significant weight to the merits of the appeal. Here, the alleged change in circumstances rested in large measure on the restatement in a more comprehensive form of legal arguments made on the first application. In addition, one new argument was put before Laskin J.A.. I agree with Laskin J.A. that these kinds of arguments will seldom amount to a material change in circumstances justifying release. I would not, however, interfere with the conclusion of Laskin J.A. that this was one of those rare cases where a rearticulation of arguments previously made supplemented by a new ground of appeal amounted to a material change in circumstances which affected the outcome of the public interest inquiry required under section 679(3)(c).”
23Both counsel agree that the above statement by Justice Doherty for the Court of Appeal represents the state of the law applicable in this case.
Conclusion
24I find that nothing in the material provided or submissions made to me justifies rehearing the voir dire, re-opening the voir dire or recalling Detective Constable Skinn for further cross-examination on the voir dire.
25The defendant’s application to re-open is dismissed.
“Original signed by Justice Raikes” Justice R. Raikes
Released: January 9, 2017.
ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – Sharon Marie Stockton Defendant REASONS FOR JUDGMENT Raikes, J Judge SCJ