CITATION: R. v. Persaud, 2017 ONSC 6734
COURT FILE NO.: CR-16-90000668-0000
DATE: 20171106
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
ROOPNARINE LENNIE PERSAUD
Accused
Althea Francis, for the Crown
Marianne Salih, for the Accused
HEARD: October 30 to November 3, 2017
B.A. ALLEN J.
REASONS FOR DECISION
(Application: Whether a source is a confidential informant or a police agent)
BACKGROUND
The Police Investigation
[1] This application is brought by the defence for the disclosure of the identity of a confidential informant who gave information to the police in relation to the investigation of the accused.
[2] The accused, Roopnarine Persaud, age 34 at the time, was arrested on July 14, 2015 and charged with possession of cocaine for the purpose of trafficking.
[3] The background facts are that sometime in July 2015, the day of the month being redacted, the Toronto Police Guns and Gangs Task Force received information through a police source handler who had communicated with a confidential source. The day of the month this information was received is redacted. The source provided information that Mr. Persaud was trafficking cocaine. Mr. Persaud became the target of the investigation. An Information to Obtain (the "ITO"), was prepared and sworn on July 14, 2015 by an officer with Guns and Gangs, Officer Mandeep Parmar.
[4] The ITO contains information the police gathered through computer searches, surveillance and information supplied by the source, including a description of Mr. Persaud, the address of his residence and some information about his background. Information in many paragraphs of the ITO was redacted to protect privileged information.
[5] On the basis of the information in the search warrant application, on July 14th the police obtained a warrant to search two residences, one at 31 Lafferty Street in Toronto and the other at 215 Sherway Gardens, apartment 810. The police were also authorized to search a black 2005 Range Rover.
[6] The police conducted surveillance on July 13th and 14th.
[7] On July 13th Mr. Persaud was observed leaving 31 Lafferty and getting into a black Range Rover. They saw him driving the black Range Rover and followed him to a college in Scarborough.
[8] The police also observed him drive the black Range Rover to a parking lot in a Toronto park. Mr. Persaud drove up and parked parallel to a grey Honda that was parked in the lot. Through an open window Mr. Persaud spoke briefly to the driver of the Honda through its open window.
[9] The police then observed Mr. Persaud hand a tightly wrapped yellow plastic bag, approximately the size of a tennis ball, to the male in the grey Honda. No license plate number for the Honda was obtained. No officers followed the grey Honda. They followed Mr. Persaud to 31 Lafferty where he parked the Range Rover.
[10] Later on July 13th officers observed Mr. Persaud leave 31 Lafferty and attend at 215 Sherway Gardens where he parked in the visitors' parking lot. He was observed entering apartment 810.
[11] On July 14th officers conducted surveillance on 215 Sherway Gardens and 31 Lafferty. Mr. Persaud was seen leaving 31 Lafferty driving the black Range Rover. The police saw what they thought was a hand-to-hand transaction. The ITO contains no further details about this transaction. They observed him attend 215 Sherway Gardens, apartment 810.
The Search
[12] The search warrant was executed on the residences and the Range Rover on July 15th. Nothing of evidentiary value was found at 31 Lafferty. There was a co-accused in this case, John Puran. He told the police he lived at 215 Sherway Gardens, apartment 810, but said he did not know who else lived there. At 215 Sherway Gardens in apartment 810, the officers found a safe under the kitchen sink in which they found cocaine and drug paraphernalia. They also found drugs in an upper kitchen cupboard. Inside a picture frame the police found a key to a second safe inside a bedroom in which they found MDMA and drug paraphernalia.
[13] Mr. Puran was charged as a co-accused. But he was shot and killed on September 1, 2016 before the preliminary inquiry.
THE ISSUE
[14] Paragraphs of the ITO contain references to drug activity by the source with Mr. Persaud. One reference indicates the source has been to Mr. Persaud's house at 31 Lafferty to purchase drugs. Only one of the references to drug activity contains a date. That date is in July 2015, with the day of the month redacted.
[15] The defence does not challenge the validity of the search warrant. The defence raises an issue in relation to limited redacted areas of the warrant that appear to involve the role played by the source in the investigation. Other courts have employed the principles and procedure developed in relation to validity challenges to other types of challenges to information in an information to obtain. I find favour in some of those principles and procedure in determining the issue before the court in this hearing.
[16] The defence raises the issue as to whether the source acted as a confidential source or a police agent in the investigation of Mr. Persaud. The defence bases this query on the paragraphs in the ITO that reference drug activity between the confidential source and Mr. Persaud and on the fact that at least one such activity, and from the defence's perspective perhaps even others, occurred in July 2015. The source handler received information from the source and passed it to the affiant on the ITO sometime in July 2015 and the search was executed on July 15th.
[17] The question is whether any drug activity occurred during the short window of time from the beginning of July before the search on July 15th. This left the defence to query whether the transaction that was dated to have occurred in July 2015 or any of the other transactions occurred after the source acted as an informant in relation to the investigation of Mr. Persaud.
[18] The issue is whether the source acted simply as a supplier of information to the police or whether he was an agent of the police by virtue of engaging in drug-related activity with Mr. Persaud after he was engaged as a confidential informant in this investigation.
[19] The law provides that agents of the police are not afforded the privilege and protection of confidentiality extended to confidential informants. The defence takes the position that the source became a police agent when he engaged in drug activity with Mr. Persaud during this investigation. Following from this, the defence's further position is that the source's identity should be disclosed and his evidence about the investigation made accessible to the defence and the court at trial. Below I will discuss the law governing the defence's position
[20] The Crown contends the source acted solely as a confidential informant in this investigation and is entitled to be protected by privilege. Below I discuss the law of confidential informant privilege.
THE LAW
On Confidential Informant Privilege
[21] Important rules apply to restrict the disclosure of information when, in an investigation, the police act on information obtained from a confidential informant. These rules govern the use by police of information they obtain from informants when the police seek to support an application for a search warrant.
[22] The special privilege afforded confidential informants is grounded in the reality that informants are often critical to police investigations and put themselves at risk if information is disclosed that could disclose their identity. The police and Crown have a positive obligation to protect the identity of a confidential informant: [ R. v. Leipert, 1997 367, [1997] 1 S.C.R. 281 (S.C.C.)]. The court is bound by the same obligation. The court has no discretion in this area.
[23] I mentioned that various areas of information in the ITO are redacted. Redactions serve to guard against the risk that information in the ITO could potentially identify the informant. The redactions protect the privilege. The redacted information is therefore not open to the defence. The question then arises as to how the defence would be able to make its case that the source acted as an agent for the police in this investigation when information essential to establishing this is not available to them. This poses an obvious challenge to the defence's ability to make full answer and defence.
[24] The Supreme Court of Canada in R. v. Debot held, in a case where the validity of a warrant was challenged, that informant privilege is paramount. The Court, however, cautioned that sufficient information must be available in the information to obtain from which the issuing court could assess the credibility and reliability of the informant and the information provided: [R. v. Debot, [1989] 2 S.C.R. 1140 (S.C.C.), 1989 13, at pp. 215 - 216].
[25] I apply the principle enunciated in Debot to the narrower concern before me. I am faced with whether sufficient information is available in the ITO to allow the defence to establish its case that the source was an agent. The defence argues that the redactions are so extensive that its ability to make full answer and defence is hampered. The Crown is of the view that the redacted information is very sensitive and if revealed would pose a serious threat to identifying the source.
[26] In my determination of whether and what information can be disclosed I am guided by an observation made by the Ontario Court of Appeal in R. v. Omar which addresses the precariousness of making this type of decision:
The informer had provided the police with very detailed information about where the respondent would be found, what he would be wearing, the very car he would be driving, and the precise location in the car where a gun would be found. The pool of people who would be privy to that precise and detailed information must be very small. The individuals in that pool are likely known to the respondent. Even the slightest piece of information about the informer gleaned from the police files could serve to eliminate some members of the pool or identify the informer.
[R. v. Omar, 2007 ONCA 218, at 255, (Ont. C.A.)]
[27] Later in my decision, I will address the process I followed to assess the redacted information and arrive at the decision that some information could be disclosed.
On Confidential Informants versus Police Agents
[28] Citing the Supreme Court of Canada in R. v. Barros, the defence argues the source's identity should be disclosed as he is not entitled to the anonymity bestowed upon a confidential informant. R. v. Barros stands for the following proposition:
No protection is afforded to a "source" whose conduct goes beyond the provision of information and acts as an "agent provocateur" or is otherwise a material witness to the crime. Both the agent provocateur and the material witness play an active role in criminal investigations and proceedings that goes beyond "tipping" the police. Once a police informer goes into the "field" and acts as a police agent, the informer privilege is no longer applicable to prevent disclosure of his or her identity in respect of the events in which he or she acted as an agent.
[R. v. Barros, [2011] 3. S.C.R. 368, at para. 33 (S.C.C.)]
[29] The defence is of the view that the source stepped into the field of the investigation when he did more than supplying information to the police. The defence's position is that it can be reasonably inferred from the face of the ITO that the source purchased drugs from Mr. Persaud during the currency of the investigation.
[30] The defence sought to have the information under the following redactions disclosed. The square brackets [ ] indicate an area of redaction. Some paragraphs are fully redacted.
The Redacted Information under Review
Page 4, paragraph 1 (a)
On July [ ] 2015 I received information from Detective Constable [ ] who spoke with the confidential source, who provided information on a male party
Page 4, paragraph 1 (c)
I conducted a CPIC check on [ ]. This check revealed the following:
Page 10, paragraph 5, x
Page 11, Part entitled, "Sealing Order Request", paragraph 2
The confidential sources have provided sensitive information regarding Roopnarine PERSAUD
Page 16, Part entitled, "Confidential Source #1"
On [redacted] July [ ] 2015 I spoke with Detective Constable [ ] in relation to information he had received about a male believed to be in possession of a narcotics in the City of Toronto. [ ] spoke with a Confidential Source who provided the information below.
Page 16, Part entitled, "Reliability of the Confidential Source", paragraphs 1 and 2.
[ ].
[ ].
Page 16, Part entitled, "Motivation of Confidential Source", paragraph 7
- The source has provided information to the Toronto Police Service, as a result of his/her [ ].
Page 17, Part entitled, "Compelling Nature of the Information provided by the Confidential Informer", paragraph 8
- [ ].
Page 17, Part entitled, "Confidential Source (CI) #1, paragraphs 3, 6, 8, 13, 14, 16, 17 and on page 18, paragraphs 20 – 30.
[ ].
[ ].
[ ].
[ ].
[ ].
The Source advised that he/she would [ ] to arrange a drug transaction. [ ].
On [ ] July [ ] 2015, the source contacted PERSAUD to purchase [ ] cocaine, [ ]. The source purchased [ ] cocaine. During this transaction the source observed [ ] cocaine in PERSAUD'S possession.
PERSAUD has sold drugs to the source on several occasions. [ ].
[ ].
[ ].
[ ].
[ ].
[ ].
[ ].
[ ].
[ ].
[ ].
[ ].
THE APPROPRIATE PROCEDURE
In Camera Hearing as Last Resort
[31] Trial judges have broad discretion on warrant applications to craft appropriate procedures: [R. v. Basi 2009 SCC 52,, at para. 55, (S.C.C.)]. One method of assuring that privileged information is not disclosed, considering the sensitive role played by the source, is to hold an ex parte, in camera proceeding where the defendant and their counsel are excluded. This of course raises obvious procedural fairness concerns of particular significance in the conduct of criminal prosecutions where 'the liberty of the accused is at stake': [R. v. Basi, at para. 52].
[32] R. v. Basi goes on to point out that the criminal jeopardy the accused faces mandates the court to protect their right to a fair trial. If a hearing is required the trial judge is obligated to adopt all reasonable measures to permit defence counsel to make meaningful submissions regarding what occurs in their absence: [R. v. Basi, at para. 55].
[33] An in camera proceeding is an option of last resort: [Named Person v. Vancouver Sun, [2007] 3. S.C.R. 253, at para.41, (S.C.C.)]. The court should only exercise that option when it is absolutely necessary. Basi provides the following guidance:
Where a hearing is required to resolve a Crown claim of privilege, the accused and defence counsel should therefore be excluded from the proceedings only when the identity of the confidential informant cannot be otherwise protected. And, even then, only to the necessary extent. In determining whether the claim of privilege has been made out, trial judges should make every effort to avoid unnecessary complexity or delay, without compromising the ability of the accused to make full answer and defence.
[R. v. Basi, at para. 53]
[34] Where an in camera proceeding is to be held, to allow the defence a reasonable measure of input, the court should invite submissions from the defence on the facts in the case and the law that supports the proposition that the source was a police agent rather than a confidential informant: [R. v. Basi, at para. 56].
[35] For obvious reasons, in order to protect privilege before a determination the in camera hearing must be held under the assumption that the privilege applies: [R. v. Unnamed Person, at para. 47 and R. v. Basi, at para. 44].
The Garofoli Procedure
[36] The parties made submissions about the procedure that should be followed to address the privilege issues to facilitate a decision on the issue before the court.
[37] The Crown took the position that due to the extent and sensitivity of the redacted information, the optimal approach would be to conduct an ex parte hearing to facilitate an open and fruitful airing of evidence to allow the disclosure of evidence that will assist the court to determine the role of the source.
[38] The defence took the position that the procedure set forth by this court in R. v. McKenzie, which advocated a process in the nature of a R. v. Garofoli Step 6 procedure, is the appropriate procedure to follow: [R. v. Garofoli, 1990 52 (SCC), [1990] 2 S.C.R. 1421 (S.C.C.) and R. v. Mckenzie, [2015] O.J. No. 7036, at paras. 15 – 17, (Ont. S.C.J.].
[39] After I considered the parties' submissions, I concluded that the Step 6 procedure, originally established to assess the validity of a wiretap and since used on search warrant applications, meets the requirement of an approach, short of excluding the accused from a hearing process, for determining the role of the source in the investigation.
[40] The Garofoli Step 6 procedure involves a more limited exclusion of the defence during the review of the unredacted information to obtain and the process of drafting summaries of the redacted information. However, the defence is permitted to make submissions on the effect of redactions on the accused's rights and is allowed to address any insufficiencies it finds in the summaries of the redacted information. The defence is present in court for the discussions about the Crown's draft summaries and the final draft of the judicial summary. The defence can also make submissions on the final judicial summary.
[41] It may be that at the conclusion of the Step 6 process the court sees the necessity to hold an in camera proceeding to explore areas of the privileged information the court considers necessary for a determination of the issue.
[42] I will provide a brief review of the Garofoli Step 6 procedure.
[43] The first steps deals with redacting privileged information in the information to obtain. The sixth step involves assessing the sufficiency of a warrant as redacted and determining whether as redacted it will permit the defence to adequately challenge the warrant.
[44] Under the classic Garofoli scheme the Crown is required at Step 6 to state whether it believes the warrant could be supported by the redacted information to obtain. The defence then makes submissions on whether the redacted information to obtain contains sufficient information to raise an effective challenge. If the defence takes the position the information to obtain is insufficient, the court takes the defence's concerns into account in looking at whether access to further information is possible.
[45] It is a function of Step 6 to offer a compromise between having all the redactions on an information to obtain remain intact, which would impede the defence's ability to challenge the warrant, and all the redactions being removed, which would jeopardize confidentiality: [R. v. Elliott, 2017 CarswellOnt 1153, at para. 53, (Ont. S.C.J.)]
[46] What must be considered is whether some of the redacted information can be disclosed without risking the source's anonymity and whether the Crown can provide satisfactory summaries and justifications for the redacted areas. If privilege would be at risk with disclosure the Crown is asked to prepare summaries of redacted information, a Crown Summary. Away from the courtroom, the court reviews the Crown Summary together with the unredacted information to obtain.
[47] The judge returns to open court to offer comments on the adequacy of the Crown Summary and, especially with a heavily redacted information to obtain, to discuss with Crown counsel the prospect of disclosing further information and/or amending the summary to clarify aspects of its contents. This discussion with Crown counsel, held in the presence of defence counsel and accused, must of necessity be nuanced and cryptic to foreclose the possibility of sensitive information being inadvertently disclosed to the defence.
[48] A final draft of the summary, to be prepared by Crown counsel, is ultimately arrived at taking into account the court's input on the Crown Summary. This becomes the Judicial Summary. The Judicial Summary is presented to defence counsel and the defence is invited to make submissions on the sufficiency of the Judicial Summary to address their concerns about the inadequacy of the available information in the information to obtain.
Application of the Garofoli Procedure
[49] As I understand it, the Crown took alternative positions. It took the position that the redacted ITO contains information sufficient to allow the defence to raise a defence with respect to whether the source played the role of a confidential informant or a police agent. The Crown argued in the alternative that if the court finds this not to be the case an in camera hearing should be held.
[50] The defence disagreed and pointed out redacted areas of the ITO that it seeks to be unredacted. Those are the areas of the ITO that I itemized above. The defence argued that an in camera hearing should only be held as a last resort and only after all other less exclusive options have been followed.
[51] I reviewed the redacted and unredacted ITOs together and determined that the majority of the redactions covered information that was highly sensitive. The redactions either covered detailed information about the source's interactions with Mr. Persaud or other information that might identify the source or narrow the pool of persons who could be the source.
[52] I suggested several areas where redactions could be removed to disclose the following: the accused's name and date of birth on page 4, at paragraph 1(c) and the words "No. 1 Score: 32" in the same paragraph just above the listing of Mr. Persaud's background information; and the address of Mr. Persaud's residence on page 17, "Confidential Source (C1) #1", at paragraph 6.
[53] I requested that the summary of the statement on page 10, "Grounds to Believe…", at paragraph x, be clarified. I also requested that the summary on page 18, "Confidential Source (C1) #1", at paragraph 30, be clarified to more accurately summarize what is behind the redaction. Crown counsel prepared the Judicial Summary based on the suggested changes.
[54] Defence counsel submitted that information critical to its defence remained redacted and further submitted that the Judicial Summary does not make an appreciable difference in providing a basis to argue its defence.
CROSS-EXAMINATION OF THE AFFIANT
[55] The Garofoli Step 6 procedure allows the defence to seek leave to cross-examine the affiant on the information to obtain. The defence did not seek leave to do this. Officer Parmar however swore an additional affidavit on September 26, 2017 in relation to a limited area of the ITO on which the defence sought to cross-examine him.
[56] Officer Parmar's affidavit addresses a concern about the wording in paragraph 16, one of the paragraphs the defence sought to have unredacted. The paragraph states that "the source advised that he/she would [ ] to arrange a drug transaction." Officer Parmar directed his attention to the defence's interpretation of those words to mean "that the source was offering to set up a drug deal so police could conduct surveillance and gather more evidence."
[57] Officer Parmar asserted that he did not intend that meaning. He stated in the affidavit that the words were rather intended as a summary of the source's description of how past drug deals were arranged. Officer Parmar also attested in the affidavit that he confirmed with the source handler that the source did not offer, promise or agree to take any action on behalf of the police. Officer Parmar further confirmed with the handler that the source acted entirely on their own and for their own reasons and not on behalf of the police or at their direction.
[58] On cross-examination, Officer Parmar testified he had no knowledge of when the privilege in relation to the investigation of Mr. Persaud came into being. Defence counsel asked what Officer Parmar meant by "past" drug deals − what point in time was he referring to, "past" in reference to when the source entered a privileged relationship in relation to the investigation of Mr. Persaud or "past" in relation to the time he signed the ITO. Officer Parmar indicated he meant the latter.
[59] To the critical question of whether the source conducted any drug deals with Mr. Persaud after he entered into a privileged relationship on this investigation, Officer Parmar testified that "to his knowledge" no such drug transactions took place.
CONCLUSION ON WHETHER TO HOLD AN IN CAMERA HEARING
[60] The redacted and unredacted ITOs did not assist me in any appreciable way with my determination. Rather questions remained in my mind on the central question of what role the source played in the investigation. Officer Parmar's evidence did not assist with this query. His evidence was less than emphatic on when the drug activities occurred.
[61] The question to be decided is narrow. I believe the court exhausted other reasonable avenues for the defence to participate in the process while staying short of the risk of disclosing privileged information. In the end, I found that I lacked sufficient information to arrive at a confident decision on the role of the source.
[62] I found an in camera hearing was required. I allowed the defence to present a list of questions she wished to be addressed at the hearing. Counsel presented her list to the court and the Crown.
[63] I indicated that I wished the source handler to attend and left open the possibility of the source attending. The handler testified. I did not require evidence from the source.
FINAL CONCLUSION
[64] I heard a considerable amount of privileged information in the in camera proceeding. I am therefore not at liberty to give fulsome reasons for my decision. The defence's questions were put to the handler and answered. Crown counsel asked her own questions. The court also presented questions.
[65] Suffice it to say that the source handler provided evidence that amply persuaded me that the source acted solely in the role of a confidential informant in their relationship with the police during the course of the source's involvement in the investigation of Mr. Persaud. There is no evidence he acted in any drug activity on the direction of the police. There is no evidence the source provided information from any activity they might have engaged in on their own initiative during the investigation, although there is also no evidence he acted on his own initiative during the investigation.
[66] I find the source acted in the capacity of a confidential informant and is entitled to be protected by informant privilege.
DISPOSITION
[67] I deny the defence's application.
B.A. ALLEN J.
Released: November 6, 2017
CITATION: R. v. Persaud, 2017 ONSC 6734
COURT FILE NO.: CR-16-90000668-0000
DATE: 20171106
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
ROOPNARINE LENNIE PERSAUD
Accused
REASONS FOR DECISION
(Application: Whether a source is a confidential informant or a police agent)
B.A. ALLEN J.
Released: November 6, 2017