COURT FILE NO.: CR-14-0002 DATE: 2017-05-17

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN K. Matthews, for the Crown (Respondent)

- and -

RYAN LUUKKONEN M. Hargadon, for the Accused (Applicant) Accused (Applicant)

HEARD: February 28 and March 20, 2017, at Thunder Bay, Ontario

Mr. Justice F.B. Fitzpatrick

Judgment on Application

[1] The Applicant, Mr. Ryan Luukkonen, is charged with possession of a Schedule I substance, cocaine, for the purpose of trafficking, contrary to section 5 of the Controlled Drugs and Substances Act.

[2] Mr. Luukkonen brings this “Stinchcombe Application” seeking disclosure of certain documents he asserts are in the possession of the police.

The Facts

[3] The charges facing Mr. Luukkonen arose as a result of the execution of two separate search warrants on October 3, 2012. Both the warrants were sought from, and granted by, Justice of the Peace B. Caron on that same date.

[4] One warrant, hereinafter referred to as “Warrant #1,” targeted Mr. Luukkonen’s residence, an upstairs apartment at 10 South Cumberland Street in the City of Thunder Bay. The other, hereinafter referred to as “Warrant #2,” targeted the Live Wire Ink Studio, a tattoo parlour operated by Mr. Luukkonen in the ground floor portion of 10 South Cumberland Street.

[5] Warrant #2 was sought and granted after the initial search of the apartment area was complete and a quantity of drugs, totaling 51 grams of cocaine, was recovered. The search of the tattoo parlor resulted in the seizure of a much larger quantity of cocaine – 283 grams.

[6] The affiant on both Informations to Obtain a Search Warrant (“ITOs”) was Detective Constable Ryan Landgraff of the Thunder Bay Police Service.

[7] The ITO supporting Warrant #1 relied on five confidential informants. Of those five, four provided dated information that, in the opinion of the issuing Justice of the Peace, would not permit the issuance of a warrant. One informant, “CI #1,” who was handled by D/C Landgraff, provided information that was sufficiently recent to allow the issuing justice to conclude that “[m]any independent sources provide a pattern of illegal activities, and now with the information [redacted] 2012 shows that the pattern persist [sic]. Viewed as a whole, there is sufficient evidence to conclude . . . that evidence of the offence will be found in the location searched.”

[8] The Crown and defence accepts these facts as substantially correct.

[9] The defence asserts certain other facts, which were vigorously disputed by the Crown. Essentially the defence submits that the second warrant to search the tattoo parlour was obtained by fraud. The fraud relates to the existence of “Confidential Informant #6” (CI #6). The defence alleges the police essentially fabricated, or invented the existence of CI #6 in order to justify an illegal search and obtain Warrant #2 after the fact.

[10] A list of documents sought by the defence was set out at paragraphs 41 and 45 of the factum filed by on behalf of Mr. Luukkonen dated January 26, 2017.

Resolved Matters

[11] Since the commencement of the application, several items for which the defence sought disclosure were either disclosed by the Crown, or the Crown confirmed that the documents or items do not exist. These documents or items for which the issue of disclosure was resolved following commencement of the application, are as follows:

• The complete notes, occurrence reports, and so forth of D/C Ryan Landgraff covering the entire period of the investigation of the Applicant. Disclosed. The Crown indicates the investigation of Mr. Luukkonen lasted one day, October 3, 2013;
• The complete notes, occurrence reports, and so forth of D/Sgt. Ryan Hughes, covering the entire period of the investigation of the Applicant. Disclosed;
• Photographs of Mr. Luukkonen’s apartment searched by the police as captured by D/C Landgraff. The Crown indicates no such photographs exist;
• Cell phone call logs and complete radio transmission logs documenting any contact between D/C Landgraff and D/Sgt. Hughes on October 3, 2012. The Crown indicates no such documents exist. D/C Landgraff’s phone does not now have any records of any such calls, if indeed it ever did;
• The complete notes, occurrence reports and so forth of D/C Ron Popowich and D/C Jason Ryback, detailing contacts they had with D/C Landgraff during his preparation of Warrant #1, and other investigative actions they took, but not including “tip sheets” and/or informant handling sheets. The Crown indicates no such documents exist.

Disputed Matters

[12] The remaining document or items sought by the defence which the Crown is not prepared to produce short of a Court order are:

• Item 1 – A copy of the “SMEAC” report prepared in advance of the execution of Warrant #1, which will give the formal assignments and tasks of each officer that formed part of the search team;
• Item 2 – The “tip sheets” and/or informant handling sheets for CI #1 as they pertain to information received by D/C Landgraff and used in the ITO for Warrant #1;
• Item 3 – The “tip sheets” and/or informant handling sheets for CI #6 as they pertain to information received by D/Sgt. Hughes and used in the ITO for Warrant #2

[13] Both parties acknowledge that if these notes in item 3 are ordered to be disclosed, this will trigger a Crown application under s. 37 of Canada Evidence Act seeking to produce a redacted version of notes.

[14] The defence acknowledges these remaining items fall in to two distinct classes. The first, items 1 and 2, are those which are or should have been part of the police investigation file. These types of documents have been typically referred to in the case law as “fruits of the investigation”. The defence submits it has a right to disclosure of these documents following the leading decision of the Supreme Court of Canada in R. v. Stinchcombe.

[15] The defendant seeks item 3 in order to found an application to cross examine the affiant of the Information to Obtain the warrants that were utilized to search Mr. Luukkonen’s residence and the business premises controlled by him. The parties agree a different legal test applies to the production of these types of documents. The defence must demonstrate that there is a “reasonable likelihood” that the documents will assist in a cross-examination of the affiant in a manner that would tend to undermine one of the preconditions of the issuance of the warrant such that it should not have been granted in the first place. The more restrictive test for this type of disclosure was described in the leading decision of the Supreme Court of Canada in R. v. Garofoli, [1990] 2 S.C.R. 1421. The defence admits item 3 is not part of the investigative file and therefore falls in to this category.

The Law

[16] Recently the British Columbia Court of Appeal in the decision R. v. McKay, [2016] B.C.J. No. 2042 provided a useful summary and analysis of the jurisprudence applicable to issues such as the ones before the Court. At para. 133 and 134 of that decision, P.M. Willcock J.A. wrote:

[133] Stinchcombe does not, in the first instance, require the police to produce for the Crown or the Crown to obtain all of the police’s operational files or background information unrelated to a specific investigation. It does not require the Crown to assess relevance upon the assumption that the bona fides of the police or prosecution will be in issue. To define the Crown’s general disclosure obligations by asking what issues might arise in relation to a bare allegation of non‑disclosure or misrepresentation in relation to the application for the warrant expands the scope of disclosure far beyond the investigative file or the fruits of the investigation. In my view, that definition clearly exceeds what was contemplated or demanded by Stinchcombe.

[134] Evidence, with respect to the manner in which the investigation was conducted, only becomes relevant if the Crown is aware of the basis for some concern with respect to disclosure or police conduct in relation to the obtaining of the warrant (where, as in McNeil, there is an expectation that will be disclosed) or where the requesting party can meet the low threshold of establishing a reasonable likelihood that the records sought will be of probative value to the issues on the application. In this regard, I adopt the following passage from the judgment of Campbell J. in McKenzie:

[44] … I agree with the sentiments expressed by Goldstein J. in R. v. Grant, 2013 ONSC 7323, [2013] O.J. No. 5508, at paras, 17, 31-32, where, in refusing to review a confidential informant file to determine its potential relevance to the accused’s challenge to a search warrant, he refused to undertake the proposed exercise of “random virtue testing of the police by the judiciary” by engaging in such “inquisitorial procedures” that could quickly turn into an “endless series of collateral inquiries that have nothing to do with the main function of the court on a Garofoli application.”

[17] Further at paragraph 136 of that decision the Court adopted the reasoning of Trotter J. in R. v. Ali, 2013 ONSC 2629, [2013] O.J. No. 2074,

[136] The sole issue for trial when the application for disclosure was heard was the validity of the warrant resulting in the seizure of physical evidence. The question that ought to have been asked in this case was what material was relevant to the Garofoli challenge. In that regard, I agree with the view of Trotter J. in Ali that a “request for the handler’s notes and the confidential informant file does not involve a straightforward application of the principles in R. v. Stinchcombe”.

Decision

[18] After considering the submissions of the parties, I am going to dismiss the application as it relates to items 1 and 2 and 3.

Item 1

[19] In my view these types of documents would do nothing to determine the guilt or innocence of the accused. They are irrelevant to the proceedings. They are not fruits of the investigation. It seems to me they would speak to tactical decisions and investigative methods used by the police. I agree with the submission of the Crown that it has a legitimate public interest privilege in any documents that would indicate how the police planned to perform this aspect of the investigation. What might possibly be relevant to this matter is the manner, physically, in which the police executed the warrant. This would not be revealed by production of these documents. The plan does not always necessarily match the action. Accordingly, documents about how the police planned to do the execution of the warrant in the first place would be irrelevant in my view. The application is denied in respect of the request for production of the SMEAC report.

Item 2

[20] Counsel for the defence characterizes the issue to be decided with regard to these documents as follows:

As a matter of law is an Information to Obtain Affiant required to disclose confidential informant handling notes or confidential informant reports created by himself and used in the course of preparing the information to obtain.

[21] The Crown agrees this is an apt way of articulating the specific issue regarding item 2.

[22] The defence further submits disclosure of the notes is relevant as it will allow or assist in an assessment of whether or not the affiant could reasonably believe what they claimed in the affidavit. The defence argued that because it has made an allegation of fraud against the affiant with regard to the information placed before the issuing Justice in respect to Warrant # 2, the Court should be more acutely concerned with the accuracy of information coming from this affiant in Warrant #1.

[23] The Crown resists this request on essentially three basis. First, it asserts informer privilege over the handler notes as per R. v. Leipert (1997), 112 CCC (3d) 385 SCC. Second, the Crown argues this precise issue was determined in a decision by Trotter J. in R. v. Ali, 2013 ONSC 2629, [2013] O.J. No. 2074. In that case, the defence sought production of handler notes of an affiant who was, like this case, the handler of the confidential informant. Trotter J. found this was a distinction without a difference for legal purposes. The request for production was denied relying on established case law which had been accurately and eloquently set out by MacDonnell J. in R. v. Amed et al., 2012 ONSC 4893 as the applicant had not provided any reason why the disclosure should be ordered. Third, the Crown argues that there is nothing in the information to obtain affidavit to suggest that the notes were relied on in any way by the affiant. As such they are irrelevant for the purposes of the trial and are only being sought as part of a “fishing expedition” by the defence.

[24] I agree with the arguments of the Crown relying on the decisions of Ali and Amed. There is nothing special about the fact that the affiant is the handler of the confidential informant. The informer privilege is sufficient to defeat the defence request for these documents. In addition I agree with the submission of the Crown that the affiant did not appear to rely on the notes as part of his affidavit.

[25] In my view, the defence has also not otherwise made any submission or produced any evidence on this application that would convince me that production of the handler notes for CI #1 would assist the accused in making full answer and defence. The application regarding item 2 is dismissed.

Item 3

[26] The defence freely admits this evidence is being sought for the purpose of founding a Garofoli application. Defence counsel argues it has lead evidence on this application that would allow the Court to conclude that the police illegally searched the tattoo parlour at 10 Cumberland Street with a drug sniffer dog, destroyed a surveillance system to conceal this search and then invented a confidential informant to justify entry into the tattoo parlour.

[27] The basis for this allegation comes from a number of facts. There is no question a drug sniffing dog was used to search the apartment of the accused pursuant to the Warrant #1. The notes of two of the officers involved in the search of the accused apartment identify the officer controlling the drug sniffing dog as being a member of the Nishnawbe-Aski Police force. In fact, the officer was employed by the Ontario Provincial Police.

[28] The defence submits this is an odd contradiction in the officers’ notes. The officers doing the search were employed by the Thunder Bay Police force. They routinely and regularly interact with officers from both the Nishnawbe-Aski Police force and the Ontario Provincial Police. The defence submits this is not a mistake that represents a mere slip.

[29] The defence also notes the time index entries on the dog handler’s notes do not accord with the notes of the other police officers.

[30] Second, the accused provided affidavit evidence on this application. It contained evidence about a home security system. As the defence alleges fraud, it seems to me the precise language used in the affidavit is critical to an assessment of the weight to which that evidence should be given. The full text of the affidavit is attached as Schedule 1 to this decision. Mr. Luukkonen was not cross examined on his affidavit.

[31] I note with interest Mr. Luukkonen’s affidavit does not expressly say it is his knowledge, information or belief that the police destroyed his video camera surveillance system. Certainly that is what his counsel argued I should take from the affidavit. But the affidavit does not even state the system was in operation prior to his arrest. While these observations may seem to be somewhat nit-picky, the defence is, after all, alleging fraud on this application. In my view, when it comes to such a formal, in court, on the record, allegation of fraud made about anyone, words in an affidavit matter. Precision is required in assessing evidence placed before the Court. It seems to me, particularly in the criminal context, a court must be particularly vigilant when such allegations of misconduct are made. I accept that the material is only being submitted for the purpose of obtaining disclosure. I also am keenly aware that in a Garofoli context the bar is not set particularly high to obtain orders for such disclosure.

[32] All this evidence about the manner in which the search was conducted, the contradictions about the dog, the time differences in the notes and the allegations about the home security system do not for me have a logical nexus to the existence or non-existence of CI #6. I take from the defence argument that because there are some aspects of a search that are consistent with a suggestion of an irregularity, that should be sufficient to allow me to accept the suggestion that there is a likely possibility that CI #6 does not exist. Context is important. The ultimate issue of a Garofoli inquiry, to determine the adequacy of material before an issuing judge is important. I just am not prepared to make the leap that because certain aspects of a search look “fishy”, that the door is thrown wide open for the defence to pursue any type of speculative line of questioning. In my view, the existence or non-existence of CI #6 is not dependent on D/C Hughes having notes of an interaction with that person or not. The existence of notes may be of assistance, but it seems to me if a person was prepared to fabricate a witness, they might also be prepared to fabricate notes in support of that fraud. All of which is to say the necessity of production of these notes is not determinative of the proposition of the fraud and therefore is irrelevant to the inquiry the accused is entitled to make. In my view production of that material would not assist in showing whether or not the authorization should or should not have been granted.

[33] In the end, the test at this stage of the proceeding on this narrow issue of production is relevance and would the evidence sought seem relevant to an issue on an application challenging the issuance of a warrant. I do not see, based on the evidence before me on this application, that the defence has laid a sufficient evidentiary foundation to make a finding that the tip sheets are relevant.

[34] For all the above noted reasons the balance of the application is dismissed.

“original signed by” The Hon. Mr. Justice F.B. Fitzpatrick

Released: May 17, 2017