R. v McKenzie, 2016 ONSC 242 (CanLII)
4. Disclosure of the Other Contents of the “Investigative File”
a. Introduction
[17] The much more difficult question relates to the properly defined scope of the other contents of the “investigative file” against the accused, and what precisely must be disclosed to an accused who seeks to quash an authorization or search warrant and exclude the evidence obtained by the police.
[18] Moreover, the answer to this question is of great practical importance. If the material is part and parcel of the “fruits of the investigation” against the accused, and is thereby part of the “investigative file,” then it must be disclosed to the accused, upon request, subject only to issues of privilege, unless the Crown is able to establish that the material is clearly irrelevant. See R. v. Stinchcombe, at pp. 333, 338-339, 343-346; R. v. Pires; R. v. Lising, at para. 26; R. v. McNeil, 2009 SCC 3 (CanLII), [2009] 1 S.C.R. 66, at paras. 22-25. On the other hand, if the material is not part of the “investigative file” against the accused, then it is presumptively irrelevant and need not be disclosed unless the accused can establish that there is a reasonable possibility that disclosure will be of assistance to the court in relation to a material issue on the application to quash the search warrant or set aside the authorization. See R. v. Pires;R. v. Lising, at paras. 30-31, 40; R. v. Ahmed, at paras. 29-31.
b. The Competing Interests that Must be Considered
[19] In trying to determine, with precision, the important practical issue of what materials should be disclosed to an accused by the Crown in relation to applications to quash search warrants and exclude evidence, there are three competing interests at stake that must be fairly and appropriately considered and balanced.
[20] The first consideration is the accused’s right to make full answer and defence. This right applies in the context of an evidentiary hearing. It is important to recall that, in some cases, such evidentiary hearings may be the single most important aspect of the case, and their outcome may come close to dictating the ultimate result of the trial. While the accused is “not entitled to the most favourable procedure that could possibly be imagined” in relation to such evidentiary hearings, the rules surrounding disclosure in this context must provide the accused with a meaningful procedural mechanism by which he may attack the issuance of the search warrant, both facially and sub-facially. See R. v. Crevier, at paras. 52-60; R. v. Mills, 1999 CanLII 637 (SCC), [1999] 3 S.C.R. 668, at paras. 72-73; R. v. Ahmed, at paras. 28-30.
[21] The second consideration is a contextual and practical one. However important such hearings may prove to be in some circumstances, an evidentiary hearing is still not a criminal trial on the merits of the case where a verdict is reached. The focus must remain on the issues engaged on the evidentiary hearing. In the context of the present case, for example, the focus of the proceeding must be on the question of whether there was any basis upon which the justice could properly have issued the telewarrant permitting the search. The ultimate truth of the allegations in the ITO (and the indictment) remains to be established, if possible, by the Crown at the trial proper. Inaccuracies in the ITO, or non-disclosure of material facts, will not necessarily detract from the existence of the reasonable grounds necessary to justify the issuance of the telewarrant. This type of initial inquiry into the question of the admissibility of the evidence obtained by the police is not itself a criminal trial, and must not be permitted to effectively become one by the adoption of all of the procedural trappings of a criminal trial. Otherwise, such evidentiary hearings are apt to become unwieldy and inefficient procedural vehicles of needless complexity and resulting delay, which disproportionally tax valuable court resources. See R. v. Pires; R. v. Lising, at paras. 24, 27-30, 33-35; R. v. Crevier, at para. 64; R. v. Sadikov, 2014 ONCA 72 (CanLII), 314 O.A.C. 357, at para. 86; R. v. Ebanks, 2009 ONCA 851 (CanLII), 97 O.R. (3d) 721, at para. 21, leave denied, [2010] 1 S.C.R. ix; R. v. Gundy, 2008 ONCA 284 (CanLII), 231 C.C.C. (3d) 26, at para. 43.
[22] The third consideration is a matter of understanding priorities. It is critical to recall that, in this context, disclosure to the accused simply cannot properly be made of any information that may compromise the anonymity of a confidential informant. In other words, regardless of the practical application of the rules concerning disclosure in the context of such evidentiary hearings, the privilege of secrecy surrounding a confidential informant cannot be compromised. Accordingly, even in cases where disclosure is appropriately provided or ordered, in the absence of an effective waiver of privilege the materials disclosed to the accused must be redacted to protect the anonymity of the confidential informant. Seen in this light, the ordered “disclosure” of privileged materials is of only indirect potential benefit to the accused as it may only be useful in allowing the trial judge, who is the only one (apart from the Crown) who may view the original, unredacted, privileged materials, to independently “fact-check” or verify the accuracy of the ITO and ensure that the affiant provided full, fair and frank disclosure of factual matters in the ITO. By this observation, I do not mean to minimize the potential significance of such “disclosure” of privileged materials, but seek only to assess its significance accurately. See R. v. Crevier, at paras. 48-51; Named Person v. Vancouver Sun, 2007 SCC 43 (CanLII), [2007] 3 S.C.R. 253, at paras. 26-30, 45; R. v. Leipert, 1997 CanLII 367 (SCC), [1997] 1 S.C.R. 281, at paras. 9-10; R. v. Pires; R. v. Lising, at paras. 33, 36-37; Mission Institution v. Khela, 2014 SCC 24 (CanLII), [2014] 1 S.C.R. 502, at paras. 87-88.
c. Rejecting the “All or Nothing” Disclosure Jurisprudence
[23] The state of the jurisprudence on the subject of disclosure of the contents of the “investigative file” against the accused in this context may be fairly described as diverse, evolving and unsettled. The judicial authorities on this topic range widely from decisions holding that the accused is narrowly entitled only to disclosure of the limited materials that were put before the issuing justice (see R. v. Barzal (1993), 1993 CanLII 867 (BC CA), 84 C.C.C. (3d) 289 (B.C.C.A.), at pp. 300-302; R. v. Blake, 2015 ONSC 6008 (CanLII), [2015] O.J. No. 5003, at paras. 14-15, 22, 27, 35-36), to decisions holding that the accused is broadly entitled to disclosure of any piece of information that is logically relevant to whether the search warrant ought properly to have issued (see R. v. Edwardsen, 2015 BCSC 705 (CanLII), [2015] B.C.J. No. 875, at paras. 32-35, 43-48, 74; R. v. Little, 2012 NSSC 402 (CanLII), [2012] N.S.J. No. 744, at paras. 3, 8, 13-15). In my opinion, with respect to those holding the contrary views, neither of these two extreme approaches appropriately balances the three important competing interests.
[24] The decisions that strictly limit disclosure to only the materials that were put before the issuing justice place too little weight on the potential importance of evidentiary hearings and too narrowly restrict the ability of the accused to challenge the validity of the warrant. In this regard it is important to recall that, in R. v Crevier, at para. 72, the Court of Appeal for Ontario held that before the reviewing court is able to rely upon the original, unredacted ITO in determining the validity of a search warrant under “step six” of Garofoli, the accused must be made aware of the general nature of the redactions, and his or her awareness must be sufficient to permit the accused to challenge the redacted details “both in argument and by evidence.” In the absence of disclosure of any further information, beyond the materials placed before the issuing justice, it may be extremely difficult, if not impossible, for the accused to try to pursue any type of sub-facial attack on the issuance of the search warrant, as the other materials in the “investigative file” that may potentially undermine (or confirm) the accuracy of the ITO are simply unavailable to the accused or the court. The accused may only have a redacted copy of the ITO.
[25] Further, this approach, which requires disclosure of only the materials placed before the issuing justice, adopts far too narrow a definition of the “investigative file” against the accused. The “investigative file” would certainly include the materials placed before the issuing justice, and the ITO, if appropriately drafted, would likely summarize the key aspects of the police investigation to-date in a full, fair and frank manner. However, the “investigative file” can hardly be accurately said to be limited to such materials. There might well be a wealth of other materials gathered by the police as part of their unfolding investigation against the accused, that would also have to be properly viewed as falling within the “investigative file.”
[26] At the other end of the legal spectrum are the decisions that broadly articulate the right to disclosure in this context as including any piece of information potentially relevant to whether the search warrant ought to have issued. These decisions, in my view, place too little weight on the need to ensure that these types of evidentiary hearings remain efficiently focused upon determining the admissibility of evidence, without becoming boundless, unmanageable, resource-draining exercises. Further, these decisions seem to unhinge the disclosure obligation cast upon the Crown from its informational source (i.e. the “fruits” of the police investigation, or the “investigative file” against the accused). Indeed, in R. v. Edwardsen, at paras. 43-44, 48, the court concluded that there was “no merit” in the “investigative file” approach to disclosure, which was “little more than an arbitrary characterization” which has “little or nothing to do with the actual relevance of the information in question.” This very broad approach to disclosure obligations in this context, which discards the “investigative file” approach, has already been persuasively rejected by other courts, observing that the approach is inconsistent with binding authorities from the Supreme Court of Canada and provincial appellate courts that have consistently applied the “investigative file” approach to disclosure obligations. See R. v. Lemke, 2015 ABQB 444 (CanLII), [2015] A.J. No. 796, at paras. 28-29; R. v. McKay, 2015 BCSC 1510 (CanLII), [2015] B.C.J. No. 1841, at para. 68.
d. The General Rule Regarding Disclosure on Motions to Quash Search Warrants
[27] The appropriate balancing of the three competing considerations results, in my view, in a sensible, practical disclosure rule that occupies the middle legal ground between these two extreme ends of the disclosure spectrum. As I have indicated, the starting point is that the accused must be entitled, in the specific context of an attack on the validity of a search warrant pursuant to R. v. Garofoli, to disclosure of: (1) all documents that were put before the issuing justice; and (2) all other relevant materials in the “investigative file” concerning the accused – both subject to editing to protect informant privilege.
[28] Materials in the “investigative file" are presumptively relevant and should be disclosed unless the Crown can demonstrate they are clearly irrelevant, as such material is likely to comprise the case against the accused. See R. v. Black, 2011 ABCA 349 (CanLII), 515 A.R. 319, at paras. 33-34, leave denied, [2012] S.C.C.A. No. 49. However, once the disclosure request reaches beyond the materials placed before the issuing justice and the contents of the “investigative file,” any presumption of relevance is attenuated, and the accused must meet the modest threshold of establishing that there is a reasonable possibility that disclosure will be of assistance on the Garofoli application. See R. v. Ahmed, at paras. 30, 35-43; R. v. Burgher, at para. 72; R. v. McNeil, at para. 33; Hon. Patrick LeSage and Prof. Michael Code, Report of the Review of Large and Complex Criminal Case Procedures (2008), at pp. 22, 45-49.
[29] Given the significance of the scope of the term “investigative file” in this context, there is a real need for a practical, bright-line rule that provides guidance on what is and is not, generally speaking, included in the term “investigative file.” The parties in criminal cases must be able to understand and efficiently apply the rule of demarcation that distinguishes what material must be presumptively disclosed unless the Crown is able to demonstrate it is clearly irrelevant, and what material need not be disclosed unless the accused can demonstrate that there is a reasonable possibility that the material will be helpful in determining the application. See R. v. Lemke, at para. 29.
[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 or the details of his previous activities in confidentially providing information to the police.
e. Practically Defining the “Investigative File” In Relation to the Accused
1. “Investigative File” – Materials Accumulated by Police And Relied Upon in ITO
[31] As 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 (CanLII), 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.
[32] Significantly, 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 (CanLII), [2014] B.C.J. No. 827, at paras. 12-15; R. v. Bernath, 2015 BCSC 632 (CanLII), [2015] B.C.J. No. 785, at paras. 16, 64, 74, 78-80; R. v. Whitton, 2015 BCSC 859 (CanLII), [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
[33] As 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.
[34] The leading decision of MacDonnell J. in R. v. Ahmed provides an example of the practical operation of this principle. The accused sought to quash an authorization issued under Part VI of the Criminal Code and exclude the evidence of the intercepted communications. In the affidavit prepared in support of the authorization the affiant outlined the information provided by some 28 different confidential informants. Each of these informants had a separate police “handler.” Each police handler made contemporaneous notes of the information provided to them by their confidential informant. Each handler then prepared a “source report” setting out the information provided by their confidential informant. For purposes of the Part VI application, the affiant accessed and relied upon these 28 “source reports.” The affiant also had each handler respond to a “questionnaire” posing a number of specific questions about the reliability of each confidential informant. The affiant summarized the information from the source reports and the questionnaires in the supporting affidavit. However, the affiant never reviewed the handler’s notes of their conversations with their confidential informants. As MacDonnell J. observed, at paras. 22-26, the Crown disclosed to the accused redacted copies of the affidavit, the source reports and the completed questionnaires.
[35] At issue on the application for further disclosure in Ahmed was whether or not the Crown should be required to also disclose the notes of the handlers of the confidential informants, so that the contents of those notes could be checked for accuracy against the other disclosed materials. In the result, MacDonnell J. held, at paras. 30-32, that the accused was entitled to disclosure of “the material that was before the authorizing judge” and all of the information in the “investigative file,” but that the notes of the handlers, which had not been reviewed or relied upon by the affiant, fell “outside of the investigative file.” MacDonnell J. explained that, in such circumstances, disclosure was only justified if the accused could satisfy the “relatively modest onus” of demonstrating that there was a reasonable possibility that the requested disclosure would be of assistance on the application.
[36] Other authorities are to a similar effect. For example, in R. v. Perron, 2010 NBQB 2 (CanLII), [2008] N.B.J. No. 520, at paras. 1, 16-18, 25-29, the Crown was ordered to disclose “tip sheets” containing information provided by a confidential informant, as they were used by the affiant in drafting the affidavit in support of an application under Part VI of the Criminal Code. Similarly, in R. v. Hoelscher, at paras. 58, 67-68, the Crown was ordered to disclose “source handler notes” and “source debriefing reports” regarding the information the confidential informant provided to the handler, as the handler was also the affiant who drafted the ITO and relied upon that information in obtaining the search warrant. Likewise, in R. v. Plowman, 2015 ABQB 667(CanLII), [2015] A.J. No. 1141, at paras. 57, 64-66, the Crown was ordered to disclose the “source debriefing reports” that the affiant may have reviewed in relation to the information provided by one confidential informant, but not ordered to disclose the “source debriefing reports” or “source handler notes” that the affiant could not have reviewed regarding another confidential informant.
[37] I acknowledge, however, that there are decisions that have held that a confidential informant handler’s notes or reports are not properly disclosed to an accused even in cases where the handler is also the affiant who drafted the impugned ITO in support of the search warrant. See R. v. Ali, 2013 ONSC 2629 (CanLII), [2013] O.J. No. 2074, at para, 9. However, the evolving weight of the jurisprudence on this topic suggests that where a confidential informant’s handler is the affiant in relation to an ITO, and has gathered information from the confidential informant directly and has then included that information in the ITO, the notes or reports of the handler, qua affiant, are viewed as part of the “investigative file” or the “fruits of the investigation” that should be disclosed to the accused, after being properly vetted to protect the informant’s privilege of anonymity. See R. v. Steeves, 2004 NBQB 39, [2004] N.B.J. No. 549, at paras. 2-4, 17-26; R. v. Bernath, at paras. 4-7, 66-67, 74-80; R. v. Edwardsen, at paras. 46-48; R. v. Whitton, at paras. 16-30; R. v. McKay, at paras. 34-58, 62-65; R. v. Hoelscher, at paras. 58, 67-68; R. v. Plowman, at paras. 57, 64-66. After all, as noted by MacKenzie J. in R. v. Whitton, at paras. 23-24, in those circumstances, they are “referred to in the ITO” or are part of the “foundational material for the representations made in the ITO.”
3. Materials Not Typically Part of the “Investigative File”
[38] As I have indicated, based on this definition of the term “investigative file,” in this context of evidentiary hearings, the investigative file will typically not include: (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. See R. v. Doucette, [2009] O.J. No. 5917 (S.C.J.), at paras. 13-20; R. v. Burgher, at paras. 70, 86-87; R. v. Daponte, 2013 ONSC 4720 (CanLII),[2013] O.J. No. 3562, at paras. 16, 22-31; R. v. Croft, 2013 ABQB 705 (CanLII), 576 A.R. 333, at paras. 16-35, 38-40, 49-53; R.W. Hubbard, P.M. Brauti and S.K. Fenton, Wiretapping and Other Electronic Surveillance (2014, Loose-Leaf), vol. 2, § 8.4.1A., at pp. 8-18.4 to 18-19. 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. See R. v. McKay, at paras. 62-65; R. v. Barzal, at pp. 300-302; R. v. Lemke, at paras. 32-33.
[39] This does not mean that such documents are never properly the subject of disclosure (albeit in a redacted form to protect the operative confidential informant privilege). Rather, it means only that before they are properly subject to disclosure by the Crown, the onus is upon the accused to first meet the burden of showing that there is a reasonable likelihood that the requested materials will assist the court in the determination of the application. See R. v. Pires; R. v. Lising, at para. 40; R. v. Ahmed, at para. 31; R. v. Abdullahi, at paras. 33, 48-49; R. v. Burgher, at para. 72; R. v. Way, 2014 NSSC 180(CanLII), 345 N.S.R. (2d) 258, at paras. 51, 59, 63, 75, 97.
[40] It is important to appreciate, however, that some confidential informant materials or files may never properly be the subject of “disclosure” to the accused, even in a heavily redacted form, and even if only to permit the trial court to review the original, unredacted confidential informant files. This point was addressed recently by the Court of Appeal for Ontario in R. v. Sheriffe; R. v. Asfaha, 2015 ONCA 880 (CanLII), [2015] O.J. No. 6609, at paras. 123-143. At trial, the two accused were convicted of murder. On appeal, the appellant Sheriffe argued that the trial judge erred in quashing a subpoena for police files in relation to confidential informants and in refusing to review the confidential informant files for any information that might assist the defence. The appellant argued, more particularly, that in order to ensure that his “right to make full answer and defence was preserved, the trial judge should have conducted an ex parte review of the confidential informant files” to determine whether those files contained anything that could have assisted Sheriffe in vindicating his constitutional right.” Following this review, any relevant material could have been disclosed to Sheriffe in redacted form. See R. v. Sheriffe; R. v. Asfaha, at paras. 127, 129. In rejecting these arguments, the court confirmed, at paras. 134-138, the great breadth and near-absolute nature of confidential informant privilege (subject only to the limited innocence at stake exception) and concluded, amongst other things, at para. 141, that the “judicial review procedure proposed by trial counsel for Sheriffe would itself have infringed the confidential informer privilege rule.” [emphasis added].
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