Court File and Parties
COURT FILE NO.: 7906/18 DATE: 2019-12-16 ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Marc Huneault/Heidi Mitchell, Counsel for the Crown
- and -
DYLAN MYLES MCMILLAN
Jennifer Tremblay-Hall/J. Belisle, Counsel for the Defendant
HEARD: December 2 and 5, 2019
BEFORE: Gareau J.
REASONS ON APPLICATION FOR DISCLOSURE UNDER SS. 7, 11(d) AND 24(1) OF THE CHARTER OF RIGHTS AND FREEDOMS (BASI HEARING)
[1] Mr. McMillan is charged under a 13-count indictment dated October 17, 2018. On December 2, 2019, Mr. McMillan entered pleas of not guilty to the charges. Mr. McMillan’s trial is scheduled for February 10, 11, 12, 13 and 14, 2020 before me.
[2] The Crown has provided disclosure to the defence. Part of that disclosure includes redacted information for which the Crown claims privilege. The defence has brought an application pursuant to sections 7, 11(d), and 24(1) of the Charter of Rights and Freedoms (“Charter”) seeking an order for production and unredacting or summaries of redaction of all police notes, will says, communication recordings and logs, and disclosure of confidential information source documents.
[3] The Crown resists the application on the grounds that the redacted information sought to be produced arises from a confidential human informant and therefore privilege attaches to the information.
[4] To consider positions advanced by the Crown and the defence, an in camera Basi hearing was held on December 2, 2019 where the court heard evidence in the absence of defence counsel and the accused. The hearing took place in the presence of Crown counsel and the sole witness called by the Crown.
[5] I am satisfied that the indicia of a confidential informant has been established based on the in camera evidence the court received on the Basi hearing.
[6] The individual providing the information has a long-standing arrangement with Sault Ste. Marie Police Services (“SSMPS”) where information is provided in exchange for monetary compensation.
[7] The evidence was a clear that there was an expectation of privacy and the information is given in confidence. The relationship of this individual with the SSMPS from past involvement clearly indicates a confidentiality inherent in the relationship and an expectation of confidentiality by the person providing the information to the police. The protection of the informant’s identity was reiterated on numerous times over the relationship between that person and the SSMPS. As part of that ongoing relationship the individual was provided with assurances by the SSMPS that identity would never be revealed.
[8] In assessing the matter as to whether confidentiality was expected by this informer and promised by the SSMPS, I have considered the jurisprudence provided to the court by Crown counsel and defence counsel and, in particular, the cases of R. v. Barros, 2011 SCC 51, [2011] S.C.J. No. 51, and R. v. B., [2013] 1 S.C.R. 368. As stated by the Supreme Court of Canada at paragraph 31 of Barros, “not everybody who provides information to the police thereby becomes a confidential informant. In a clear case, confidentiality is explicitly sought by the informer and agreed to by the police.” The court goes on to state at paragraph 32, “A claim to informer status is always open to challenge by the defence. The Crown is better able to meet that challenge if it can point to clear evidence of informer status being conferred explicitly rather than after the fact supposition.”
[9] In applying Barros, the Supreme Court of Canada in R. v. B. indicated at paragraph 18 of that decision,
In R. v. Barros, 2011 SCC 51, [2011] 3 S.C.R. 368 (S.C.C.), this Court held that “not everybody who provides information to the police thereby becomes a confidential informant” (para. 31). The Court was clear, however, that “the promise [of protection and confidentiality] need not be express ... [and] may be implicit in the circumstances” (para. 31, citing Bisaillon c. Keable, 1983 CanLII 26 (SCC), [1983] 2 S.C.R. 60 (S.C.C.)). The legal question is whether, objectively, an implicit promise of confidentiality can be inferred from the circumstances. In other words, would the police conduct have led a person in the shoes of the potential informer to believe, on reasonable grounds, that his or her identity would be protected? Related to this, is there evidence from which it can reasonably be inferred that the potential informer believed that informer status was being or had been bestowed on him or her? An implicit promise of informer privilege may arise even if the police did not intend to confer that status or consider the person an informer, so long as the police conduct in all the circumstances could have created reasonable expectations of confidentiality.
[10] I am amply satisfied that the relationship between this informant and the SSMPS and the past dealings between them was such that the informant had an expectation of confidentiality while giving the information and the SSMPS offered confidentiality and a protection of identity to the informant in giving the information.
[11] The evidence at the Basi hearing revealed that there are systems in place between the handler and this confidential informant designed solely to protect the identity of the informant and to protect the information that is provided to the handler by the informant, such as private telephone lines, the handler having a separate notebook for the information provided, with that notebook being secured under lock and key, and the informant being referred to by number rather than by name. The evidence before me indicated that the SSMPS have a policy in place as a protocol to deal with confidential informants and that this protocol was followed in dealing with the informant in this case. The individual providing the information signed a payment card in respect of the transaction involving Dylan McMillan that reiterates that the individual is a “confidential human source” and not an agent and acknowledging that there is a “privilege” that is attaching to the information provided.
[12] This informant has never, and with respect to the information provided pertaining to Dylan McMillan did not work under the direction of the SSMPS or carry out tasks directed by the SSMPS. The evidence clearly leads this court to conclude that the individual was not an agent for the SSMPS but rather a confidential informant.
[13] On hearing the evidence led at the Basi hearing, I am left in no doubt that the person that provided information to the handler at the SSMPS in relation to Dylan McMillan was doing so with the expectation of confidentiality and the protection of identity, and that the person acted as a confidential human informant in providing that information to the SSMPS. As such, there is a privilege attached to the information provided.
[14] As to the issue of whether any of the source documents, police notes, will says, communication logs and recordings can be disclosed to the defence in an unredacted form. I have heard submissions of counsel and I am of the view that to afford fairness to the accused, an in camera hearing should be held for the court to review the unredacted material to determine whether any unredacted information can be disclosed to the defence. In this regard, an in camera hearing will take place on January 9, 2020 at 10:00 a.m.
Gareau J.
Released: December 16, 2019
ONTARIO SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN – and – DYLAN MYLES MCMILLAN
REASONS ON APPLICATION FOR DISCLOSURE UNDER SS. 7, 11(D), AND 24(1) OF THE CHARTER OF RIGHTS AND FREEDOMS (BASI HEARING)
Gareau J.
Released: December 16, 2019