Decision on Disclosure Source Handler Notes and Source Debriefing Reports
- September 18th, 2015
- Myers Co Law
- No comments
Posted By Zack Myers
|File No: 40569-1|
|Registry: Port Alberni|
|In the Provincial Court of British Columbia|
|REGINA $$$$ JAMES ####|
|RULING ON DEFENCE APPLICATION FOR DISCLOSURE OF THE HONOURABLE JUDGE LAMPERSON COPY|
|Crown Counsel:||A. Clarkson|
|Defence Counsel:||Z. Myers|
|Place of Hearing:||Port Alberni, B.C.|
|Date of Judgment:||August 24, 2015|
 THE COURT: I will now give my decision in the defence’s application for further disclosure.
 $$$$ James #### is charged that on the 30th day of November, 2013, at or near the City of Port Alberni, he did unlawfully possess a controlled substance, to wit, cocaine, for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act.
 On November 30th, 2013, the Port Alberni RCMP executed a search warrant at Mr. ####’s residence at Unit Number 10, 3826 Anderson Avenue, Port Alberni. In the course of their search, the police located 3.52 grams of prepackaged cocaine, 17.68 grams of cocaine, packaging material, and cash in the amount of approximately $4,500.
 At trial, Mr. #### intends to apply to have the evidence excluded under the Charter on the basis that the warrant to search his apartment was invalid. He will argue that the evidence contained in the Information to Obtain a Search Warrant was insufficient to satisfy the issuing justice that there were reasonable grounds to believe that there was evidence of the offence in his residence.
 The Information to Obtain a Search Warrant contains, amongst other information, information provided to the police by two paid confidential informants. Counsel for Mr. #### has filed an application seeking disclosure of the following: all police officer notes related to interviews or conversations with informants, all police officer notes related to the investigation, all source handler notes and source debriefing reports related to the confidential informants to which the affiant referred in his ITO, and all notes/reports made after conversations with informants’ handlers.
 Defence counsel argues that disclosure of this information is necessary to assess the accuracy and reliability of the information attributed to the informants and set out in the Information to Obtain. The Crown takes the position that the materials sought are not subject to disclosure, because they do not meet the requisite threshold of relevance and because they are protected by informer privilege.
 In assessing the accused’s disclosure request, it is helpful to have an understanding as to how the police manage confidential informants and the information provided by them. The Crown tendered as evidence an affidavit from RCMP Staff Sergeant Cater who was in charge of E-Division, that is British Columbia, Human Source Management Operations. The staff sergeant’s affidavit provides general information about the nature of informer handling and informer materials. I will summarize some of what he sets out in his affidavit.
 Information received by the police from informers is important to effective policing. Confidential informants, who are closer to those committing criminal offences, often have intimate knowledge that is often difficult for the police to access from other investigative sources or strategies. Information from confidential informants is often an integral part of the detection, investigation, and successful prosecution of those involved in criminal activity.
 There are different motivations as to why a person would want to come forward to provide information to the police on a voluntary and confidential basis. What is consistent, however, is that confidential informants become involved in confidential relationships with the police based on trust and integrity. No one would tell the police anything on a confidential basis if there was any realistic expectation that the relationship would be exposed. Exposure can create safety concerns for the confidential informants and sometimes their family and associates. Exposure can sometimes put the confidential informant’s life at risk.
 Anyone who provides information about criminal activity to the RCMP on a voluntary and confidential basis must be vetted, approved, and coded as a confidential informant by the Human Source Unit. When the Human Source Unit determines that it is appropriate to approve of the use of a confidential informant, the individual is given a unique confidential informant code and a handler is designated. Thereafter, the handler is tasked with carefully documenting all contact with the confidential informant.
 Principally, the handler’s contact with the confidential informant is documented in the handler’s notebook. Handlers are expected to maintain a dedicated notebook for each confidential informant. Each instance in which an informer provides information about criminal activity to his or her handler is considered a debriefing of the informant. The notes made by handlers are to be detailed and comprehensive and invariably contain details which would identify the confidential informant. The handler’s notes are the primary record of information provided by a confidential informant.
 Handlers are expected to document the information provided by the confidential informant in a source debriefing report. An SDR, as it is sometimes referred to, is a standardized RCMP form used by a source handler to record confidential informant information about criminal activity for the purpose of making it available for officers in the field in a strictly controlled way. A separate SDR is created for each instance in which a confidential informant is debriefed. An SDR will contain a summary of criminal activity reported by the confidential informant during a debriefing. It is therefore common for an SDR to contain information about a number of criminal activities involving a number of individuals who may be unrelated to each other.
 A handler is expected to draft the SDR in a manner that avoids identifying the confidential informant. However, the confidential informant’s identity is often apparent to anyone familiar with the case or the activity described.
 The purpose of an SDR is not to create a primary record of the information provided by the confidential informant, but rather, to ensure that the intelligence information provided by the confidential informant with respect to the past, ongoing, or future criminal activity is made available to police officers involved in the identification and investigation of criminal activity.
 I will now turn to the law.
 In accordance with R. v. Stinchcombe,  3 S.C.R. 326, the Crown and the police have a duty to disclose material in its possession relating to the investigation, with the exception of material that is clearly irrelevant or privileged. The disclosure obligation mandated by Stinchcombe is often referred to as the first party disclosure obligation. It is generally accepted that the Crown’s first party disclosure obligation only applies to material which can be said to be part of the investigative file, often referred to as the fruits of the investigation.
 For information which can be said to be part of the investigative file, the Crown must disclose it unless it can show that it is clearly irrelevant. For information which is not part of the investigative file and, therefore, not subject to the first party disclosure obligation, the information must only be disclosed if the defence can show that the information is likely relevant.
 In determining which standard applies to the disclosure of handlers’ notes and source debriefing reports, it is necessary to decide whether they can be said to be part of the investigative file or fruits of the investigation. In R. v. Bernath, found at  B.C.J. No. 785, Madam Justice Ballance considers what is meant by the phrase “fruits of investigation.” She notes that the phrase appears to have first been made by the Supreme Court of Canada in Stinchcombe, but was not defined. At paragraph 77, Madam Justice Ballance states as follows: In its most straightforward iteration, the concept of fruits of the investigation/investigative file would appear to mean the material relating to or pertaining to the accused’s case in the possession or control of the prosecuting entity.
 In the case at bar, the Crown argues that the source handlers’ notes and the source debriefing reports are not properly characterized as part of the investigative file or fruits of the investigation and that their disclosure should be subject to the defence showing them to be likely relevant. Crown counsel submits that the source handlers’ notes and source debriefing reports are different than first party investigative documents, because they are not created to further a particular investigation against an accused or to establish reasonable grounds for a search warrant against the accused.
 Crown counsel argues that the content of source handler notes and source debriefing reports are necessarily different than the content of Informations to Obtain. He says that source handler notes contain the language of the informer and contain specific details that may tend to identify the informer. He says further that such language and information would necessarily be altered or vetted when preparing the Information to Obtain.
 There are a number of decisions which consider the issue of whether source handler notes and source debriefing reports are part of the investigative file or fruits of the investigation. There are several decisions of Ontario courts which conclude that source handler notes and source debriefing reports do not form part of the investigative file and are not the subject of a first party disclosure obligation.
 In Bernath, Madam Justice Ballance engages in a review and analysis of past decisions including Ontario decisions. At paragraph 79, she states as follows: It seems to me that the imposition of a narrow reading of the meaning of fruits of the investigation or investigative file that may be emerging from the Ontario authorities is at odds with the expansive approach to disclosure established by Stinchcombe and could pose the risk of whittling down Stinchcombe’s essential edicts.
 The Crown relies in part on the British Columbia Court of Appeal’s decision in R. v. Barzal, found at  B.C.J. No. 1812, to resist the disclosure of the source handler notes and source debriefing reports in the case before me. Barzal is sometimes cited as standing for the proposition that, in the context of a Garofoli hearing, the accused’s right to make full answer and defence is a right to disclosure of material that was physically before the authorizing judge and nothing more.
 In Bernath, Madam Justice Ballance considers the Barzal decision. At paragraph 27, she writes as follows: The decision in Barzal must be understood in the context of the unusual factual backdrop in which it was decided and the discrete issues that were under appeal. At paragraph 30, she states: The sought-after debriefing notes were part of the police operational file that contained all the information received from each informer. Notably, it was common ground that in all probability, the operational file contained information touching on matters that were unrelated to anyone connected with the particular investigation of the accused in Barzal. There was nothing in Barzal indicating that the affiant had reviewed the debriefing notes or referred to them in the affidavits. At paragraph 39, Madam Justice Ballance says as follows: Barzal stands as an important affirmation of the principles and procedure on a Garofoli application. It is not, however, authoritative on whether certain contents of the investigative file, such as informant debriefing reports, are clearly irrelevant and not subject to production under the Stinchcombe analysis.
 The Barzal decision was also considered in the recent decision of R. v. Lemke, a decision of the Alberta Court of Queen’s Bench. That case is found at  A.J. No. 796. In his decision, Justice Veit considered Barzal, on which the Crown was relying in opposing a defence disclosure application. At paragraph 33, he states as follows: The problems in Barzal were manifold. First, the accused was asking for information beyond the “fruits of the investigation” … Such material is not subject to disclosure under the Stinchcombe principles as explained in subsequent Supreme Court of Canada decisions. Second, and clearly fatal, the judge ordered the prosecutor to reveal the identity of confidential informants … Third, the trial court did not follow appropriate procedures to protect confidential informants while, at the same time, respecting the accused’s right to disclosure. None of those problems arise here. The comments in Barzal about the right of disclosure being limited to materials that were before the authorizing judge were not part of the ratio decidendi; the court was not focussing, in that case, on the defence’s right to basic disclosure.
 Going back to the decision of Madam Justice Ballance in Bernath, she states at paragraph 78 as follows: I cannot conceive of how it can be said that the handler notes and source debriefing reports concerning a particular accused and relied upon by the affiant to assist in informing himself or herself to satisfy the requisite belief of the existence of reasonable and probable grounds to support the issuance of a search warrant, could … be characterized as being outside the fruits of the investigation or the investigative file.
 In the end, Madam Justice Ballance concluded that the police notes and source debriefing reports constituted the fruits of the investigation of Mr. Bernath. At paragraph 80 she states: It is also my view that these materials are not clearly irrelevant, but rather, I find there is a reasonable possibility that [the] material may assist or be useful to Mr. Bernath in meeting the case against him, advancing his defence, or making a decision that may affect the conduct of his defence.
 Finally, Madam Justice Ballance states that even if the requested materials do not comprise the investigative file or fruits of the investigation, they would be disclosable in her case because they were relied upon by the affiant, also because the defence had alleged non-disclosure or misleading evidence on the part of the affiant on the face of the ITO that calls into question the status of the informant as a confidential informant.
 In the B.C. Provincial Court decision of R. v. Roy, found at  B.C.J. No. 827, Judge Craig considers whether a police officer’s report regarding a confidential informant that was referred to in the ITO was simply background material, as asserted by the Crown, or was part of the investigative file. She determined that the report was a source document relied upon by the affiant and it formed part of the investigative file. As such, she decided that the report was subject to Stinchcombe first party disclosure obligations.
 In the recent B.C. Supreme Court decision in R. v. Whitton, found at  B.C.J. No. 1047, Mr. Justice Mackenzie considered the question of whether information contained in certain source debriefing reports and officers’ notes should be disclosed to the defence. As in the case at bar, the grounds for the warrant to search the accused’s residence were largely dependent upon information received from a confidential informant. As in our case, the accused alleged that the police did not have sufficient evidence to justify the issuance of the warrant to search the residence. In Whitton, the defence sought disclosure of the source material relating to the address of a person to whom it was alleged Mr. Whitton provided drugs and the licence plate number of a vehicle operated by that person. Mr. Justice Mackenzie considered the British Columbia decisions of Bernath and Roy and Edwardsen, which is found at 2015 BCSC 705. At paragraph 20, he says that he agrees with the conclusions reached in those decisions and states: Stinchcombe applies, in my view, with full force in the Garofoli context. At paragraph 23, he writes as follows: Moreover, Barzal and Basi can be readily distinguished from the present case on the basis that what is sought in this application is only the foundational material for the representations made in the ITO which, of course, are in there because they are highly relevant to the application for an authorization for a warrant. At paragraph 25, Mr. Justice Mackenzie says as follows: Based on Bernath, Edwardsen, Roy, Gallant and Constable Robinson’s reliance on the foundational material in the ITO, in my view, it cannot be said these materials are irrelevant or fall outside the investigative file. In fact, I agree with defence counsel when he says it would be illogical to reach a contrary decision. Finally, he says at paragraph 26: Moreover, I am satisfied any concerns that the disclosure of this discrete material will tend to reveal the identity of an informer will be allayed by editing them for this purpose.
 While the facts in the cases of Bernath, Roy, and Whitton differ from those in each other and from the case at bar, it is clear that they stand as authority for the proposition that source handlers’ notes and source debriefing reports may form part of the investigative file and may be subject to the Stinchcombe first party disclosure application.
 In the present case, while not specifically stated in the ITO, it seems very likely that the affiant, Constable Bezanson, relied at least to some extent upon his source handler notes and on source debriefing reports in preparing the ITO. The ITO refers to information provided by confidential informants as far back as 2011 and up until November of 2013, the month in which Mr. ####’s apartment was searched and he was arrested.
 I am told by Crown counsel that for the most part the information which the police obtained from the informants as to Mr. #### was provided in the course of intelligence gathering meetings. Crown counsel advises that the police did not specifically start investigating Mr. #### until sometime in November of 2013.
 Crown counsel argues that even if particular source handler notes and/or source debriefing reports form part of the investigative file, they should not be disclosed because they are subject to informer privilege. Crown counsel submits that a blanket privilege applies because it is often not possible to edit source handler notes and, to a lesser extent, source debriefing reports in a manner which will protect the identity of the informant.
 The same argument was made by Crown counsel in the recent B.C. Provincial Court case of R. v. Pitcher and Raistrick. This is a case out of the Duncan registry; the file number is 36370. The decision was handed down on July 3, 2015. At paragraph 27 of her decision, Judge Wishart states as follows [as read in]: Having considered all of the authorities referred to by counsel, I agree with the findings in Bernath and Edwardsen that the documents sought do not enjoy a blanket privilege. The Crown must determine whether the privilege applies and disclose information where it does not apply including that found in source debriefing reports and source handler notes. I appreciate that this is not a straightforward task and will likely require discussions between Crown and the police officers to determine whether the information in question might tend to disclose the identity of the accused in any given case.
 In the end, Judge Wishart ordered disclosure of much of the information sought by defence counsel.
 I have considered the circumstances in the case at bar together with the case law provided. In my view, the defence is entitled to disclosure of any and all source handler notes and source debriefing reports relating to Mr. #### and on which the affiant, Constable Bezanson, relied in preparing his Information to Obtain in support of the warrant to search executed at the accused’s residence on November 30th, 2013. I make that order.
 I understand the importance of confidential informants in the investigation and successful prosecution of offenders. Without confidential informants, it would often not be possible to prosecute offenders who have committed serious crimes. It is extremely important that disclosure not be such that it will allow offenders to identify informants who provide confidential information about them. It is for this reason that, but for the innocence-at-stake exception, informant privilege prevails over an accused’s right to disclosure.
 In the case at bar, to the extent that there are source handler notes and/or source debriefing reports which are caught by the disclosure ordered, they are to be vetted and edited by Crown counsel to delete any information which would tend to reveal the identity of the informants.
 It could be that there are some source handler notes and/or source debriefing reports in this case that cannot be edited in such a way that does not reveal the identity of the informant. In that case, they will not be disclosed.
 That is my decision, counsel. (RULING CONCLUDED)