CITATION: R v. Ally, 2017 ONSC 5375
COURT FILE NO.: CRIM J (F) 465/17
DATE: 2017 09 11
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
David Quayat, counsel for the Respondent
Respondent
- and -
IRFAUN ALLY
Dragi Zekavica, counsel for the Applicant
Applicant
HEARD: August 22, 2017
REASONS FOR JUDGMENT
LEMAY J
[1] The accused, Mr. Ally, is charged with possession of cocaine, possession of cocaine for the purposes of trafficking and trafficking in cocaine. All of these charges relate to an arrest of Mr. Ally on July 17h, 2015 as well as a search of his home on that day.
[2] These charges flowed from surveillance done by the police on July 17th, 2015 which, in turn, flowed from information that the police received from a confidential informant. Once the surveillance was completed, the accused was arrested, drugs were allegedly found in his possession and a telewarrant was obtained for the search of his residence. Further evidence was found during the search of the accused’s residence.
[3] The accused is bringing a Garafoli application to challenge the issuance of the telewarrant, and to seek the exclusion of evidence obtained pursuant to the telewarrant. That application is scheduled for October 23rd, 2017 for two days. The formal application has not yet been filed by the accused’s counsel. The trial is scheduled for the week of February 12th, 2018.
[4] In advance of the Garafoli application, the accused has brought a motion for production of information from the police relating to the confidential informant and the information to obtain. For the reasons that follow, the accused’s production motion is dismissed.
Background and Relief Sought
[5] The basic facts relating to this case are noted above. There are some additional facts that are also relevant to my consideration of this motion. I should note at the outset that I have not made any findings of fact on the standard of reasonable doubt. I am simply outlining the general factual basis on which the motion was argued.
[6] First, in support of the motion, the accused has provided the Affidavit of Elina Marinosyan, a law clerk in his counsel’s office. This Affidavit confirms the basic facts as set out above, and sets out details as to when the searches were conducted and what was seized as a result of these searches. The Affidavit then goes on to identify that there was a confidential informant involved in this case, and to ask for additional documentation. The Affidavit of Ms. Marinosyan does not provide any further evidence supporting the accused’s motion.
[7] Second, the investigation revealed that the accused was the registered owner of a white Mercedes. He was followed by police on July 17th, 2015. I was not informed of any surveillance that had been conducted on the accused prior to that date. On the evening of July 17th, 2015, he was allegedly in this white Mercedes in a parking lot of a shopping mall. Another person entered the car briefly and then exited the car. The other person was then stopped and found to be in possession of a small quantity of cocaine.
[8] The accused was then arrested for trafficking in a controlled substance and a search was conducted. The search allegedly found cocaine in the possession of the accused. At this point, the accused was arrested and taken to jail.
[9] In the late evening of July 17th, 2015, the police applied for (and obtained) a search warrant for the accused’s house. I was provided with a redacted copy of the Information to Obtain, which was sworn by Constable Brian Lorette of the Peel Regional Police. Cst. Lorette is not the confidential informant’s handler, and Cst. Lorette was provided with information about the reliability of the confidential informant from the confidential informant’s handler.
[10] As a result of these events, the accused’s notice of motion seeks the following production:
- An Order directing the Crown prosecutor to produce further disclosure of the following material subject to vetting,
(a) all original unredacted source handler notes (SHN) of all of his conversations and meetings with the confidential informant;
(b) all original unredacted source debrief reports (SDR) from the Handler to the Affiant;
(c) all central note taker reports during the surveillance relied upon in the Information to Obtain;
(d) all notes between Police Constable Sean Osbourne and Police Constable Brian Lorette in relation to the applicant;
(e) Copies of Ecops report referred to in the Information to obtain (if any were made):
(f) All police officers notes on the surveillance on July 17, 2015;
[11] In argument, it was confirmed that points (c) to (f) do not need to be addressed by the Court. Other relief was also sought, but the only request that needs to be addressed at this stage is the request to cross-examine the Affiant on his Information to Obtain. I should also note that the vast majority of the time spent in argument was spent addressing the issue of production.
Positions of the Parties
a) Accused’s Position
[12] The accused advances the following arguments in support of his request for additional production:
a) The police were only acting on a “hunch” when they got the warrant to search the accused’s house.
b) The information in the source notes and other items sought would assist the accused in understanding the information that the confidential informant had, and in preparing his argument for the Garafoli application.
c) It is possible that the confidential informant became an agent of the police and lost his (or her) confidential informant status. In support of this proposition, counsel suggested that I consider the decision in R. v McCormick (2006 ONCJ 320).
[13] On this application, the accused did not point to any evidence that supported his assertion that the confidential informant was acting as an agent of the police. He did argue that it was possible that the confidential informant had engaged in transactions with the accused as an agent for the police.
b) The Crown’s Position
[14] The Crown asserts that the accused’s position on this motion cannot succeed for the following reasons:
a) There is no evidentiary foundation for either the production requests or the assertion that the confidential informant lost the protection of the privilege.
b) The arguments that the accused is advancing on this motion go to the merits of the application, and should be addressed once the Garafoli application is actually brought.
c) Portions of the motion, particularly dealing with the request to cross-examine the affiant, are premature.
[15] There was an issue raised by the accused’s counsel relating to the return report for the search warrant. I believe that Crown counsel was going to address that issue. If not, the issue can be dealt with at the Garafoli hearing.
Analysis and Disposition
[16] There are two separate issues that have to be resolved. I can very briefly deal with the accused’s request to cross-examine the affiant. I accept the Crown’s position that this request is premature for two reasons. First, in the absence of an actual Garafoli application, there is no contextual basis for assessing whether cross-examination is appropriate and, if so, to what extent it should be permitted. Second, the decision of whether cross-examination on a Garafoli application should be permitted is best left to the judge hearing the application.
[17] This brings me to the production issues. I start by noting that there are some basic legal principles that apply in this case. First, confidential informant privilege is one of the most important privileges in our law, and the secrecy around the identity of a confidential informant cannot be compromised (see R v. McKenzie 2016 ONSC 242 at para. 22).
[18] Second, the Crown is obligated to disclose all of the relevant information in the investigation file. There is some debate in the jurisprudence about what is meant by the “investigation file”, and the extent of the Crown’s disclosure obligations generally (see R. v. McKenzie, supra, at paras. 23-30). As Campbell J. notes in McKenzie (at paragraph 30):
30 For the following reasons, I have concluded that the “investigative file” against an accused encompasses all materials accumulated by the investigating police agency in its investigation and relied upon in the search warrant materials targeting the accused. Typically, this includes the information received by the affiant about what the confidential informant said regarding the involvement of the suspect in the alleged offence, but does not include background personal information about any confidential informant of the details of his previous activities in confidentially providing information to the police.
[19] In other words, the information that must be disclosed includes information that the affiant relied upon in obtaining the warrant, but excludes the background information on the confidential informant. It should also exclude source documents that might, either alone or when read together, serve to identify the confidential informant unless there is a reason for the disclosure of these documents and they can be redacted to preserve the privilege.
[20] More specifically, as set out in R. v. Ahmed (2012 ONSC 4893), the notes of a confidential informant’s handler will not be considered part of the investigative file unless the handler is the affiant, the notes of the handler were relied upon by the affiant in preparing the ITO or the notes were otherwise part of the material considered by the Court in the ITO.
[21] In this case, there is no evidence that the source documents being sought by the accused were reviewed and/or considered by Cst. Lorette. Indeed, the very limited evidence that I have is to the contrary, as Cst. Lorette’s affidavit states that he received the information from the handler. In the circumstances, I am of the view that the source documents the accused is seeking fall outside of the investigative file.
[22] As a result, the accused has to demonstrate some basis for the disclosure he is seeking. As MacDonnell J. notes in R. v Ahmed, supra (at paras 44 and 45):
44 For the foregoing reasons, I conclude that where the defence is seeking a court order obliging the Crown to disclose material that was not before the authorizing judge, that the affiant did not rely on, and that is outside of the borders of what is relevant for the trial itself, the defence has to do something more than demand the material. It must breathe life into the claim of relevance.
45 The applicants have set out a number of grounds on which an attack to the existence of the preconditions for an authorization can be made, but they have not shown any basis for believing that any of those grounds exist in this case or that disclosure of the handlers’ notes will give rise to those grounds. What they want to do, they have made clear, is to compare the source reports with the notes that were used to prepare them to determine if the authors of the reports accurately performed the transposition. The hope, and on the record it cannot be put any higher than that, is that they may find an inaccuracy or omission that might he characterized as significant. What is proposed is purely a fishing expedition.
[23] This reasoning has also been adopted in R. v. Grant (2013 ONSC 7323), and I also adopt it.
[24] In this case, the accused has not provided any factual foundation for believing that the source documents being sought are “reasonably necessary” or will otherwise advance the understanding of the Garafoli application or the merits of the case. As a result, there is no basis for the disclosure that the accused is seeking.
[25] I also note that the accused’s assertion that the police were searching his house on a “hunch” rather than on reasonable suspicion is an argument on the merits of the Garafoli application, and should not be considered at this preliminary stage.
[26] This brings me to the accused’s final point, which is that the confidential informant may have acted as an agent of the police. Again, there is no evidence before me to suggest that this is (or even might be) the case. The case before me can be distinguished from R. v. McCormick, supra., on two key grounds. First, in McCormick, there was clear evidence that the confidential informant had been retained as an agent of the police, including the fact that he was recruiting other individuals to provide information. Second, in McCormick, there was also evidence that the confidential informant had not actually been provided with the protection of the privilege. In the record before me, there is no evidence whatsoever that the confidential informant either acted as an agent or was not offered the protection of the confidential informant privilege. This argument also fails.
[27] For the foregoing reasons, the accused’s production motion is dismissed.
LEMAY J
Released: September 11, 2017
CITATION: R v. Ally, 2017 ONSC 5375
COURT FILE NO.: CRIM J (F) 465/17
DATE: 2017 09 11
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
- and -
IRFAUN ALLY
Applicant
REASONS FOR JUDGMENT
LEMAY J
Released: September 11, 2017