COURT FILE NO.: 7846/18

DATE: 2019-02-20

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

B. Pritchard, Federal Crown

Respondent

• and -

CODY BLAINE CUTHBERTSON and JESSICA BOLAN

E. McCooeye, Counsel for C. Cuthbertson

J. Tremblay-Hall, Counsel for J. Bolan

Applicants

HEARD: February 1, 2019

RASAIAH J.

reasons on application for disclosure

THE CHARGES

1Cody Blaine Cuthbertson and Jessica Bolan stand charged that they on or about the 1st day of February 2017, at the City of Sault Ste. Marie in the said Region:

1. did possess a substance included in Schedule I, to wit: fentanyl, for the purpose of trafficking, contrary to section 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c.19 (“CDSA”);

2. did possess a substance included in Schedule I, to wit: heroin, for the purpose of trafficking, contrary to section 5(2) of the CDSA;

3. did possess a substance included in Schedule I, to wit: oxycodone, contrary to section 4(1) of the CDSA; and

4. did possess a substance included in Schedule I, to wit: cannabis marihuana, contrary to section 4(1) of the CDSA.

2Cody Blaine Cuthbertson further stands charged that:

1. He did, while being bound by a probation order made by an Ontario Court of Justice on November 18, 2015, fail without reasonable excuse to comply with such order, to wit: keep the peace and be of good behaviour, contrary to section 733.1(1) of the Criminal Code of Canada, R.S.C. 1985, c. C-46.

THE APPLICATION

3The applicant Jessica Bolan (“Bolan”) brought an application seeking an order for disclosure as outlined in the application. The applicants agreed, and it was not disputed/objected to that the application was intended to be and should be treated as a joint application.

4The grounds and background for this application are as follows:

1. On February 1, 2017 Sault Ste. Marie Police Service (“SSMPS”) sought, and obtained, a s. 11 Controlled Drugs and Substances Act (“CDSA”) Search Warrant for the residence of the applicant, Cuthbertson at 307 Franklin Street, Sault Ste. Marie, Ontario.

2. The applicant Cody Cuthbertson was the subject of this s. 11 CDSA Search Warrant.

3. The applicants have brought an application based on s. 8 of the Canadian Charter of Rights and Freedoms, (the “Charter”), to have the evidence obtained from the search of the residence at 307 Franklin Street, and the search of the applicant Bolan incident to arrest, excluded pursuant to section 24(2) of the Charter on the basis that they were obtained by means of an unreasonable search and seizure contrary to s. 8 of the Charter. The police lacked reasonable and probable grounds to obtain the s. 11 CDSA warrant.

4. The s. 8 Charter application alleges that the applicant Bolan submits her arrest was also unlawful and contrary to s. 9 of the Charter.

5. The applicants have sought leave to cross-examine various affiant and sub-affiants in connection with the Charter challenge. The applicants have brought a facial and sub-facial challenge to the judicial authorization as detailed in the applicant’s application to cross-examine the affiants in respect of the Information to Obtain (“ITO”), served and filed August 28, 2018.

6. The ITO for the judicial authorization is heavily reliant on information that was purportedly provided by three different confidential human sources (“CI”);

7. The applicants assert that the ITO affiant states that she reviewed a copy of the handler’s CI notes and that she learned from her review the information she relied on as set out by her in para. 21(b) (CI #2) and in para. 22(c) (CI #3).

8. The ITO as disclosed is redacted, the applicant’s argue, heavily.

9. The Crown has refused to disclose the source documents in relation to the information read and relied on by the affiant.

10. The Crown is taking the position that none of the CI source notes read and relied upon by the affiant can be disclosed to the defence as it is irrelevant. It was not clear to defence if the Crown also posited that it cannot disclose the source notes without risking that it would tend to identify the sources and violate the informer privilege.

11. The applicants alleged that the Crown had not advised the applicants whether they were seeking to rely on the redacted information in order to sustain the judicial authorization pursuant to Step 6 in R. v. Garofoli, 1990 52 (SCC), [1990] 2 S.C.R. 1421.

12. The Crown has a duty to disclose all information in its possession or control that is not otherwise privileged to an accused in accordance with s. 7 and 11(d) of the Charter (R. v. Stinchcombe, 1991 45 (SCC), [1991] 3 S.C.R. 326; R. v. Dixon, 1998 805 (SCC), [1998] 1 S.C.R. 244)

13. The Crown’s decision to withhold disclosure is reviewable on a standard of legal correctness (R. v. Chaplin, [1995] 1 S.C.R. 722 at para. 25)

14. The applicants assert that although the Crown is entitled to withhold disclosure on the basis of privilege (including informer privilege), that decision is reviewable by the court for three reasons. First, the question of relevance is whether the information has informed the affiant in her task of preparing the ITO (R. v. McKenzie, 2016 ONSC 242, and R. v. Basios, 2017 ONCJ 6). Second, privilege is a legal question and deference is now shown to the police and/or the Crown in that regard although a court must be mindful of concerns raised by the Crown that further disclosure will tend to identify the informant (R. v. Omar [2015] O.J. No. 1474 (C.A.)). Thirdly, if the Crown is going to rely on the redacted information for the purpose of supporting the issuance of the warrants, a court must determine whether a suitable judicial summary can be provided to allow the applicant to meaningfully advance their Charter claims (R. v. Crevier 2015 ONCA 619, [2015] O.J. No. 5109 (C.A.)) or whether the Crown should be precluded from relying on the redacted information.

ANALYSIS

5At the hearing, there was some confusion as to what the issues were, in part, in my view, because is was not clear to the Crown whether or not “police agent” was being alleged by defence in respect of the CIs, and defence was not clear if the Crown was relying on the ITO as redacted. The Crown confirmed that at this date the Crown was relying on the ITO as redacted. Defence confirmed it was not arguing or suggesting that any of the confidential informants were police agents.

6Accordingly, it was clarified at this stage, that the documents at issue for disclosure for this ruling are the notes reviewed and relied on by the ITO affiant in respect of confidential informants #2 and #3. The challenge to informer privilege was not being dealt with at this time in respect of these notes; and/or any other portions of the ITO that were redacted.

7The Crown submitted that the notes did not form part of the investigative file or the information placed before the authorizing justice; and as such are irrelevant, offering no usefulness in the context of Garofoli or any issue the Crown would be required to prove at the trial of this matter or s. 24(2) of the Charter.

8I reviewed the ITO which was prepared by Detective Constable Melanie Roach (“the affiant”).

9In paragraph 21 of the ITO, the affiant, in respect of information from CI #2, set out:

On the 1st of February 2017, I spoke with Detective Constable Boyle regarding the information he received from Confidential Informant #2 on the [redacted] January, 2017 and reviewed a copy of his notes. I learned the following:

i. [redacted] Cody Cuthbertson [redacted] selling very strong heroin. [redacted] Affiant note: [redacted]

ii. Selling heroin for [redacted] a point and Jib for a [redacted] a point.

[Emphasis mine.]

10In paragraph 22 regarding CI #3 the affiant set out:

On the 1st of February 2017, I spoke with Detective Constable Boyle regarding the information he received from Confidential Informant #3 on [redacted] and reviewed a copy of his notes. I learned the following:

i. Cody Cuthbertson is living on Franklin Street near Wallace Terrace on the West side (Affiant note: I am aware that Franklin Street runs north from Wallace Terrace);

ii. The Informant has been at this house [redacted];

iii. Informant saw several small baggies with [redacted] grams of crystal meth. Approximately [redacted].

iv. Selling for [redacted] a bag;

v. Informant observed silver scale in the living room. [redacted]

vi. [redacted]

vii. He is getting his drugs from Kenny Frigault (Affiant note: Confidential Informant #1 stated the same);

viii. Cody is using meth.

ix. Informant observed cash on the living room table;

x. Informant observed all of the above points within the last 48 hours [redacted] ;

xi. The informant pointed out 307 Franklin Street to be Cody Cuthbertson’s house.

[Emphasis mine.]

11I considered the submissions and all of the cases that the Crown and defence referred me to.

12This situation is different from the factual matrices of the cases provided, in that, in this case, the affiant is not the handler and this is not a case where the affiant solely received information from the handler orally. The affiant expressly refers to reviewing a copy of the handler’s notes; and I am satisfied it can be reasonably inferred from the affiant’s drafting that she relied on same in preparing the ITO – which was not really disputed by the Crown. The affiant uses of the words “I learned the following”, directly following from her recitation of her stated sources, which includes the notes. The cited information emanating from the affiant’s sources (which includes notes) clearly sets out a relationship to the specific investigation that led to the charges against the applicants.

13In R. v. Ahmed, 2001 ONSC 4893, the affiant did not review the handler’s notes.

14I agree with the analysis and approach set out in R. v. McKenzie 2016 ONSC 242, paras. 31 to 33 and that it should be extended/applied to these facts. The following was set out:

“Investigative File” – Materials Accumulated by Police and Relied Upon in ITO

31As I have indicated, in my view, for purposes of applications to quash search warrants pursuant to Garofoli, the “investigative file” against an accused is properly defined as including 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. This was, essentially, how Clark J. defined the term in R. v. Abdullahi, 2014 ONSC 3981, 316 C.R.R. (2d) 156, at paras. 5-7, 17, 20. This definition of “investigative file” ensures that the accused is provided with disclosure of, essentially, all of the materials that were relied upon by the affiant in drafting the ITO. In my view, this element of reliance by the affiant upon the information is an important element of the definition of “investigative file” for disclosure purposes in relation to motions to quash search warrants and exclude evidence.

32Significantly, a number of the decisions in this area have expressly suggested that the “investigative file” includes any materials that the affiant “relied upon” in drafting the ITO. See, for example, R. v. Ahmed, at para. 44; R. v. Burgher, at para. 73; R. v. Abdullahi, at para. 17; R. v. Roy, 2014 BCPC 70, [2014] B.C.J. No. 827, at paras. 12-15; R. v. Bernath, 2015 BCSC 632, [2015] B.C.J. No. 785, at paras. 16, 64, 74, 78-80; R. v. Whitton, 2015 BCSC 859, [2015] B.C.J. No. 1047, at paras. 23-25; R. v. Hoelscher, 2015 ABQB 651, [2015] A.J. No. 1105, at para. 68. At the same time, the element of reliance must be understood in a practical way. Not everything that may have once been seen or heard by the affiant before completing the ITO is necessarily relied upon by the affiant and, therefore, part of the “investigative file” in relation to the accused. Indeed, as Garton J. aptly noted in R. v. Arviko, [2013] O.J. No. 6293, at para. 14 (and further discussed at paras. 3-7, 17-27), all items that may have been “viewed or heard by the affiant are not presumptively relevant and discloseable” by the Crown.

2. Information Provided by Confidential Informant to the Affiant

33As I have indicated, generally speaking, the “investigative file” in relation to the accused must include the materials outlining the information received by the affiant about what the confidential informant said about the involvement of the suspect in the alleged offence. Accordingly, in cases where the affiant has communicated directly with the confidential informant, the affiant’s notes of those communications (redacted to protect privilege) should be disclosed to the accused. Similarly, in cases where the affiant has been provided with information from another police officer about the confidential informant’s allegations about the involvement of the suspect in the alleged offence, any documentation passed along to the affiant and/or any notes about what information was passed along to the affiant (redacted to protect privilege) should be disclosed to the accused.

15In this particular case having regard for the application to challenge the warrant, based on the particular facts of this case, I am satisfied that Detective Constable Boyle’s notes are expressly referred to in the ITO by the affiant, at some time she had a copy of these notes, the notes she relied on constitute documentation in her investigative file that the affiant accumulated/acquired in her investigation, and relied on to draft the ITO, that they speak to what the respective CIs stated about the involvement of the applicant Cuthbertson in the alleged offences, and as such they are not clearly irrelevant and ought to be disclosed, subject to redacting for purpose of protecting the identity of the confidential informants.

ORDER

16The Crown shall forthwith disclose the notes that Detective Constable Melanie Roach expressly states that she reviewed and relied on with respect to confidential informants #2 and #3, referred to in paragraphs 21 and 22 of the ITO, filed at Tab 2C of the applicants’ application record to exclude evidence, subject to redacting for the purpose of protecting the identity of the confidential informants.

Rasaiah J.