COURT FILE NO.: CR-19-90000228

DATE: 20190729

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

RYAN WILLIAMS

Helena Solin, for the Crown

Rafik Kodsy, for Mr. Williams

HEARD: July 15, 17, and 18, 2019

R.F. GOLDSTEIN J.

REASONS FOR JUDGMENT ON DISCLOSURE APPLICATION

[1] The police relied on information two confidential informants to obtain a search warrant. When they executed the warrant they seized drugs. What is the extent of the Crown’s disclosure obligation regarding a confidential informant, or CI? That is the question on this application.

THIS APPLICATION

[2] Mr. Williams’s trial is scheduled for September 23, 2019. His counsel, Mr. Kodsy, intends to bring an application to exclude the seized drugs: R. v. Garofoli, 1990 52 (SCC), [1990] 2 SCR 1421. The Garofoli application will focus on the information that the CIs provided to the police.

[3] The defence says it needs further disclosure in order to make the Garofoli application. Specifically, the defence asks that the Crown disclose various materials in the possession of the police.

[4] The Crown agrees that some of the material the defence seeks is relevant. The Crown has either has disclosed it or will disclose it. The Crown resists the rest of the disclosure requests.

[5] The following list sets out the disclosure request as set out in the Notice of Application and the Crown’s response:

ITEM:	DISCLOSURE REQUEST:	CROWN RESPONSE
A.	The investigative file generated by the TPS in the search warrant application for the Applicant’s residence and vehicle including the computer database checks/reports conducted and reviewed by the affiant.	The Crown will provide the database checks.
B.	The notes of the affiant respecting any meetings or communications with the CI handlers wherein the affiant received information relied upon in the ITO, redacted as necessary.	The affiant did not keep any notes but the Crown will provide a willstate of information that will not identify the CIs.
C.	The notes that the affiant created in preparation of the ITO.	The affiant did not keep any notes but the Crown will provide a willstate of information that will not identify the Cls.
D.	The notes of the CI handlers respecting any meetings or communications with the affiant wherein information was provided to the affiant, redacted as necessary	The affiant did not keep any notes but the Crown will provide a willstate of information that will not identify the CIs.
E.	The CI handler’s notes and the CI files, redacted as necessary to protect the identity of the CIs.	The Crown resists providing any disclosure, as any disclosure may identify the CIs.
F.	The photograph of the Applicant that was shown to the CIs.	The Crown will provide the photograph but will resists providing any further disclosure, as any disclosure may identify the CIs.
G.	Any notes regarding the photo identification process involving the CIs, redacted as necessary.	The Crown resists providing any disclosure, as any disclosure may identify the CIs.

[6] Ms. Solin for the Crown and Mr. Kodsy for Mr. Williams made arguments over two days, July 15 and July 18, 2019. Mr. Kodsy advised me in oral argument on the first day (July 15) that he was first pursuing Items F and G, the notes and information regarding the photo. He indicated to me that he was deferring argument on Item E. He stated that he needed to examine the disclosure to be provided by the Crown in order to decide whether to pursue Item E. That was a practical and reasonable way to proceed.

[7] I dismissed the application respecting Items F (other than the photograph) and G on July 17, 2019. I indicated that my written reasons would follow.

[8] On July 18, 2019 Mr. Kodsy advised me that he was also pursuing Item E, the handler notes and the informant files. I reserved my judgment on that day.

[9] In my view, the application respecting Item E should also be dismissed.

[10] Although I dealt with the items on two separate days, all of the items engage the same issues. I will deal with all the items together. The following are my reasons for dismissing the application.

BACKGROUND

[11] On August 21, 2017 the Toronto Police executed a search warrant on Ryan Williams’ home and car. The home was at 3 Auld Croft Road in Toronto. The car was a 2014 Mazda 3. The police seized drugs. They charged Mr. Williams with three counts of possession of a Schedule 1 drug for the purposes of trafficking, contrary to the Controlled Drugs and Substances Act.

[12] The police relied on information from two CIs. The police set out the information in the information to obtain the search warrant, or ITO. The Crown disclosed the redacted ITO to the defence. The Crown obviously redacted the ITO to protect the identities of the two CIs. Nonetheless, there is a significant amount of information in the redacted ITO.

[13] According to the ITO, the first CI told the police that he knew Ryan Williams. Mr. Williams was a cocaine and heroin dealer. Mr. Williams’ address was 3 Auld Croft Road. The first CI described Mr. Williams’ house. He told the police that Mr. Wiliams drove a black Mazda 3 with a licence plate of CBZX 385. He said that Mr. Williams sells cocaine and heroin from the Mazda. The CI provided Mr. Williams’ cell phone number to the police. The police showed the CI a photograph of Mr. Williams. The CI identified the person in the photograph as Mr. Williams.

[14] The second CI also told the police that he knew a drug dealer named “Richie”. Richie lived at 3 Auld Croft Road. The second CI provided the police with Richie’s cell phone number. The cell phone number was that same as the one provided by the first CI. The second CI told the police that Mr. Williams drove a black Mazda 3 with a licence plate of CBZX 385. The second CI said that Mr. Williams sells cocaine and heroin from the Mazda. The police showed the second CI a photograph of Mr. Williams. The second CI identified the person in the photograph as Mr. Williams.

[15] The affiant conducted database checks on the information provided by the two CIs. The affiant learned that Mr. Williams lived at 3 Auld Croft Road. The affiant also learned that a Mazda 3 with a licence plate of CBZX 385 was registered to Ryan Williams of 3 Auld Croft Road. Police also conducted surveillance of 3 Auld Croft Road. A police officer observed a Mazda 3 with a licence plate of CBZX 385 parked in the drive way.

[16] The affiant provided more information about the two CIs in Appendix “D” to the ITO. Both CIs are “deeply entrenched in the drug culture.” Both CI’s are registered informants with the Toronto Police. The affiant also provided information about information provided in the past by the two CI’s to the police.

ISSUE AND ANALYSIS

[17] Mr. Kodsy, for Mr. Williams, seeks the notes of the informant handlers regarding the photo identification process (Items F and G). Mr. Kodsy seeks a willstate if there are no notes. He states that he needs the notes in order to know what the handlers conveyed to the affiant. Mr. Kodsy further seeks the informant files and the notes of the informant handlers (Item E). He argues that Items E, F, and G form part of the investigative file. As such, they should be disclosed to the defence as first party disclosure unless the Crown can demonstrate that they are clearly irrelevant: R. v. Stinchecombe, 1991 45 (SCC), [1991] 3 S.C.R. 326.

[18] Mr. Kodsy sets out his position in his factum:

The Applicant further seeks the disclosure of the confidential informant handler’s notes respecting the confidential informants’ involvement in the investigation, and the confidential informants’ files, in their entirety, subject to editing…

The Applicant contends that this material should also be considered part of the investigative file. The Applicant’s position is that notwithstanding the legitimate need to protect confidential human sources, there is no compelling purpose to withhold this information, redacted as necessary… The Toronto Police Service, the investigating police agency, in the process of the Applicant’s investigation, produced these materials in order to record the provision of confidential information. Whether or not the notes were provided to the affiant, the information contained therein was clearly the evidence that can be characterized as the “fruits” of the investigation…

[19] The Crown agrees that Mr. Kodsy is entitled to the affiant’s notes (or in this case, a willstate) but resists providing the rest of the material.

[20] Mr. Kodsy agrees that the defence must make a threshold showing that there is a reasonable possibility that the specific material in this case – the notes and files of the informant handlers – will assist the defence. He argues that the defence has met that burden. He further states in his factum (I excerpt the key parts):

The material sought by the Applicant… is properly characterized as first party disclosure, as it is part of the investigative file of the Toronto Police. It is thus presumptively relevant and should be disclosed… This is so whether or not this material, or the information it contains, was placed before the authorizing justice.

[21] Mr. Kodsy points to the fact that the affiant did not keep notes of her conversations with the informant handlers. She typed the information that the informant handlers provided to her directly into the ITO. He argues that he needs to check the handlers notes against the ITO to make sure the information was transmitted without error.

[22] I respectfully disagree. The defence has not met the low threshold in relation to Items E, F, and G. An accused must show a reasonable likelihood that the records sought will be of probative value to the issues on the application: World Bank v. Wallace, 2016 SCC 15, [2016] 1 S.C.R. 207 at para. 132. The Crown is not usually required to disclose Items E, F, and G: R. v. McKenzie, 2016 ONSC 242 at paras. 49-52.

[23] I start with two propositions that virtually every court that has dealt with this issue has stated.

[24] First, when determining the relevance of any particular material, context matters. Thus, it matters that a Garofoli hearing is not about the guilt or innocence of the accused. Material in this context is only relevant if it is capable of showing that the preconditions of the authorization were not met or that police misconduct subverted the pre-authorization process: R. v. Garofoli, at para. 68; R. v. Paryniuk, 2017 ONCA 87. Even where the accused is able to demonstrate fraud, material non-disclosure, or misleading disclosure, the warrant my still be upheld: R. v. Garofoli, R. v. Bisson, 1994 46 (SCC), [1994] 3 S.C.R. 1097. Second, nothing can be disclosed that could compromise the identity of a confidential informant: R. v. Leipert, 1997 367 (SCC), [1997] 1 S.C.R. 281. Of course, these propositions illustrate the tension in our law: how to protect the identity of the informant while facilitating an accused person’s right to full answer and defence? Many trees have died and much ink has been spilled over this issue.

[25] There is no question that an accused person is entitled to disclosure that will allow him or her to mount a meaningful challenge to these investigative tools: R. v. Crevier 2015 ONCS 619, 2015 ONSC 619 at para. 63; R. v. Ahmed, 2012 ONSC 4893; McKenzie, at para. 20. Charron J. noted for the Supreme Court in R. v. Pires and Lising, 2005 SCC 66, [2005] 3 S.C.R. 343 at paras. 25-26:

Under s. 187(1.4) of the Criminal Code, the defence has access to all the documents relating to the authorization. Access is granted on the simple assertion that the admissibility of the evidence is challenged and that access to the material is required in preparation for trial: R. v. Dersch, 1990 3820 (SCC), [1990] 2 S.C.R. 1505 at p. 1517. The material includes the affidavit filed in support of the application for an authorization. Subject to any necessary editing for the protection of informants, the affidavit will usually provide a comprehensive account of the investigation leading up to the wiretap application, an articulation of the grounds relied upon in support of the application, and information relevant to the reasonable believability of material gathered from informants. The affidavit filed in this case will be reviewed in detail later in these reasons.

In addition, under the principles established in Stinchecombe, the defence is entitled to all material in the possession or control of the Crown that is potentially relevant to the case, whether favourable to the accused or not. The defence can therefore compare the contents of the investigative file received from the Crown to the authorization's supporting material to ascertain whether anything throws doubt on the reasonable believability of the latter. Further, the disclosure material may also provide the defence with possible third-party avenues of inquiry.

[26] In other words, the accused person is entitled to the “investigative file”. But what does that mean? My colleague Campbell J. in McKenzie, a 2016 case decided just prior to World Bank v. Wallace, described the jurisprudence as “diverse, evolving, and unsettled”. He identified two lines of authority on the point. Both lines revolve around the definition of “investigative file”. The British Columbia Court of Appeal subsequently conducted a similar analysis: R. v McKay, 2016 BCCA 391 per Willcock J.A.

[27] The first line of authority emphasizes that a Garofoli hearing is not a trial on the merits. The accused is entitled to the material relied on by the affiant. The accused is also entitled to the material put before the issuing justice. The accused is not entitled to underlying source documents unless he or she can demonstrate that it is of some relevance. The second line of authority emphasizes broader disclosure. All materials generated by the police should be disclosed, unless clearly irrelevant. That line makes no distinction between the background or informant files and the notes relating to the particular investigation: R. v. Barzal, 1993 867 (BC CA), 1993 CarswellBC 1154, 84 C.C.C. (3d) 289 (BCCA).

[28] Both Campbell J. in McKenzie and Willcock J.A. in McKay identified R. v. Edwardsen, 2015 BCSC 705 as representing other line of authority. That line emphasizes a much wider initial disclosure obligation. Edwardsen expanded the notion of “investigative file” considerably. The application judge ordered disclosure of debriefing reports, source handler notes and other material not routinely considered part of the “investigative file”. He said that it could be relevant to a Garofoli hearing. That material had not been before the authorizing judge. The material had not been used directly by the affiant. The judge did not require a showing of threshold relevance. Other courts in British Columbia and Alberta have followed Edwardsen: R. v. Hoelscher, 2015 ABQB 651. The earlier Nova Scotia case of R. v. Little, 2012 NSSC 402 came to the same conclusion as Edwardsen.

[29] I am aware that in World Bank Group the Supreme Court mentioned Edwardsen. It did so simply noting that where Edwardsen and similar cases had ordered disclosure it was because they had found that the material came within the boundaries of Stinchcombe.

[30] Respectfully, however, I believe that Edwardsen is not good law, at least on this point. In McKay, Willcock J.A. for the British Columbia Court of Appeal found that Edwardsen misread Pires and Lising. The Edwardsen judge did not distinguish between the fruits of the investigation (and therefore disclosable under Stinchcombe) and other material in the Crown’s possession. Willcock J.A., instead, followed Ahmed and McKenzie from this court. He found that the material could only be disclosed after a showing of threshold relevance.

[31] In my view, World Bank v. Wallace settles the question. It is clear that case is applicable to disclosure applications in the Garofoli context: McKay at para. 72.

[32] The World Bank is a major international lender that supports development in many less developed countries. Bangladesh was building a bridge with financing from a unit of the World Bank. SNC-Lavalin, a Canadian company, was bidding on the construction contract. The World Bank has an anti-corruption unit. The anti-corruption unit learned that employees of SNC-Lavalin were bribing Bangladeshi officials to approve the company’s bid. The anti-corruption unit passed the information on to the RCMP. The RCMP obtained a wiretap authorization in relation to some SNC-Lavalin employees. The RCMP ultimately charged three SNC-Lavalin employees and a Bangladeshi official under the Corruption of Foreign Public Officials Act.

[33] At trial, the accused applied for disclosure of material in the hands of the World Bank’s anti-corruption unit. Nordheimer J. of this court (as he then was) ordered that the World Bank disclose the material (subject to editing to protect informant privilege). The World Bank appealed directly to the Supreme Court of Canada. The Supreme Court held that the World Bank enjoyed immunity. It was not subject to a domestic third party records order. The Court also found that even if the World Bank was not immune, the accused failed to show that there was a reasonable likelihood that “the records will be of probative value to the narrow issues in play on such an application”: World Bank v. Wallace at para. 100.

[34] The Court pointed out, as it has consistently, that a Garofoli application is a narrow one where guilt or innocence is not at stake (paras. 119-120):

A Garofoli application does not determine whether the allegations underlying the wiretap application are ultimately true — a matter to be decided at trial — but rather whether the affiant had "a reasonable belief in the existence of the requisite statutory grounds" (Pires, at para. 41). What matters is what the affiant knew or ought to have known at the time the affidavit in support of the wiretap authorization was sworn. As this Court stated in Pires, albeit in the context of an application to cross-examine

the affiant:

... cross-examination that can do no more than show that some of the information relied upon by the affiant is false is not ikely to be useful unless it can also support the inference that the affiant knew or ought to have known that it was false. We must not lose sight of the fact that the wiretap authorization is an investigatory tool. [para. 41]

When an accused seeks evidence in support of a Garofoli application by way of cross-examination, this narrow test must be kept in mind.

[35] Accordingly, the Court required a threshold showing of relevance. The Court pointed out three concerns in doing so: first, as noted, a Garofoli hearing is a narrow one that engages narrow issues. Second, the lower standard risks disclosing the identification of the informant and can involve an enormous amount of vetting. That raises the risk of mistakes. The problem is acute in complex cases involving multiple informants. Third, broad requests risk derailing the proceedings, especially if they are essentially fishing expeditions: World Bank v. Wallace, paras. 128-130.

[36] The Supreme Court cited Ahmed with approval in World Bank v. Wallace. In Ahmed the police obtained a wiretap authorization based on information from multiple CIs. The accused argued that they were entitled to the notes of the handlers; indeed, the accused argued that they were entitled to all pre-Part VI investigative evidence that was potentially useful to the defence. The Crown, they argued, bore the onus of demonstrating that the requested material would be of no use to the defence on the Garofoli application. MacDonnell J. rejected that approach. He found, at para. 44:

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.

[37] MacDonnell J. observed that the defence wanted to do was to check the source reports against the notes of the affiant in order to see if there had been some mistake or error by the affiant. He described it as a “pure fishing expedition.” He then continued:

In order to succeed, the applicants must at some point take the position that it was not reasonable for the affiant to rely on reports from other officers, that she had to conduct an investigation into the accuracy of those reports, and that she had to trace them back to the notes or other materials on which they were based. That position is not consistent with s. 185(1) of the Criminal Code, which provides that a wiretap affidavit "may be sworn on information and belief". In any event, in the absence of circumstances signaling a need for further inquiry — something suggesting that the reports might not be an accurate, fair or complete account of the underlying events — the affiant was not required to do that.

[38] Ahmed has been followed in several cases in this court: McKenzie; R. v. Abdullahi, 2014 ONSC 3981, R. v. Jaser, 2014 ONSC 6052. In R. v. Ali, 2013 ONSC 2629, Trotter J. (as he then was) also expressed agreement with the principals in Ahmed. He also stated:

During submissions, it was asserted that access to the handler's notes will assist in cross-examining the affiant by uncovering yet unknown inaccuracies or omissions in the ITO. In R. v. Ahmed, MacDonnell J. characterized a similar assertion as "purely a fishing expedition." The same expression could be used in this case. On behalf of the Applicant, Ms. Thompson argues that this case should be distinguished from Ahmed because the affiant is also the handler of the confidential source. With respect, this is a distinction without a difference for legal purposes.

[39] I turn back to “the investigative file”. In McKenzie at para. 31 Campbell J. described it as “all materials accumulated (i.e. gathered or created) by the investigating police agency in its investigation, and relied upon in the search warrant materials targeting the suspect/accused.” On the other hand, Campbell J. stated (at para. 38) that these items are typically not part of the investigative file:

(1) any background information or personal details about any confidential informant; (2) any police intelligence files about any confidential informant (sometimes described as a confidential informant file); and/or (3) any reports to or from any police agency regarding the previous involvement of the confidential informant in other cases — even if redacted so as to protect the identity of the confidential informant. Accordingly, the handwritten notes or briefing notes of police handlers (not provided to affiants) are usually held to be outside the "investigative file" for disclosure purposes… Such materials are typically just background information about the confidential informant and the details of his past activities as a confidential informant, and are part of an intelligence-gathering function focused on the confidential informant, rather than on the target of the current police investigation.

[40] Campbell J. went on to state that this material (properly redacted) could still be disclosed if an accused person could meet the threshold showing of relevance.

[41] In R. v. Hibbert, 2019 ONSC 1740 my colleague Dennison J. gives an example of the application of McKenzie. The police executed a search warrant. The warrant was based, in part, on information from a CI. At the Garofoli hearing the Crown decided to only go to Step 5 – in other words, the Crown did not rely on the informant information to uphold the validity of the warrant. The accused wanted the notes of the handler in order to see if there was a material omission or misleading information in the ITO. Dennison J. dismissed the application. She stated at para. 57:

The applicants have not demonstrated that there is a reasonable possibility that the disclosure of the handler's notes would show a material omission or falsehood that was deliberate or reckless in the draft Appendix "D" that was prepared by PC Angevine that was misleading. There is even less of a reasonable possibility that the affiant was aware of any material omission or deliberate falsehood and mislead the issuing justice.

[42] Here, the defence seeks to do the same that the defence sought to do in Hibbert: check to see if the affiant got it right. As I stated in a different case, without more this kind of disclosure request simply amounts to random virtue testing of the police: R. v. Grant, 2013 ONSC 7323 at para. 7.

[43] In the result, I find that Items E, F, and G are not part of the “investigative file” and are not routinely disclosed. Moreover, the mere fact that the affiant typed the information directly into the ITO is simply not enough to meet the threshold to show that the items are probative.

DISPOSITION

[44] The application is dismissed. I thank both counsel for the efficient manner in which they dealt with this matter.

R.F. Goldstein J.

Released: July 29, 2019

COURT FILE NO.: CR-19-90000228

DATE: 20190729

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

RYAN WILLIAMS

REASONS FOR JUDGMENT ON DISCLOSURE APPLICATION

R.F. Goldstein J.