R v Y 2006

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Between
Her Majesty The Queen, Applicant, and U, Respondent
[2006] O.J. No. 4864
Court File No. 01-BN-6678
Ontario Superior Court of Justice
D.L. Corbett J.
Heard: October 3, 2006.
Judgment: November 6, 2006.
(38 paras.)

Holly A. Akin, for the Crown
Cynthia Fromstein and Emily Morton, for the Accused

REASONS FOR JUDGMENT



  1. D.L. CORBETT J.:— Mr. Y is charged with possession of 243 grams of heroin for the purposes of trafficking. The charge arises from a search of Mr. Y's bedroom in an apartment he shares with another man, Victor Ashun-Quainoo. The apartment is located at 304-10 Kensington Road, Brampton.
  2. Police obtained search warrants for the apartment and for two other apartments in the same building. The "target" of the search was Mr. Ashun-Quainoo. The grounds for seeking the search warrants were set out in affidavits from Constable Barbara Smith. In her affidavits, Constable Smith relied on information from other police officers. Those other officers, in turn, relied upon information they received from confidential informants. To summarize, the confidential informants told police that Mr. Ashun-Quainoo is a drug dealer who secretes his drug supply in places where it will not be linked to him.
  3. The search warrants did not implicate Mr. Y in Mr. Ashun-Quainoo's alleged drug dealing.
  4. The heroin was found in apartment 304, in Mr. Y's drawer, and was the only drug found consistent with the evidence used to obtain the search warrant. [See Note 1 below] No drugs were found in the other apartments.

    Note 1: A small amount of marijuana was apparently found in Mr. Ashun-Quainoo's possession, and led to a charge and plea of guilty on a charge of "simple possession" of marijuana. I am aware that the confidential informants identified Mr. Ashun-Quainoo as a dealer in cocaine, and did not say anything about heroin.
  5. 5 Pursuant to R. v. Stinchcombe, [See Note 2 below] the Crown disclosed to Mr. Y a copy of the Smith affidavit. Substantial portions of this affidavit were "edited" [See Note 3 below] to remove any information that might tend to identify confidential informants. [See Note 4 below] This redacted affidavit was augmented with a "judicial summary" that provided general information about the redacted evidence.

    Note 2: (1991), 68 C.C.C. (3d) 1 (S.C.C.).
    Note 3: The proper word might be "redacted", since portions of the affidavit were blacked out, and no additional information was provided.
    Note 4: There were problems with this editorial process in this case. There were separate versions of Constable Smith's affidavit for warrants for each of the three apartments. Large portions of these affidavits were identical, with separate information emphasized in each in respect to the apartment that was the subject matter of the particular application. Charges were laid against both Mr. Y and Mr. Ashun-Quainoo. Apparently all three affidavits were provided to Mr. Ashun-Quainoo's counsel, and only the affidavit pertaining to apartment 304 was provided to Mr. Y's counsel. The editing of the three affidavits was not consistent, and Crown counsel determined that a reading of all of the versions released to Messrs. Yakubu and Mr. Ashun-Quainoo might tend to reveal the identity of confidential informants. Thus, after release of an edited version of the affidavit of Constable Smith to Ms. Fromstein, the Crown obtained an order from the Ontario Court of Justice requiring Ms. Fromstein to return the edited affidavit to the Crown for re-editing. Ms. Fromstein was prohibited from disclosing any of the information in the first version of the affidavit if it was removed during the re-edit.
  6. Mr. Y applied for disclosure of the identity of the confidential informants, or alternatively, an order that the information obtained from these informants be put in evidence through police witnesses.
  7. A class privilege attaches to the identity of confidential informants. The privilege is a "hallowed" one, only to be pierced in rare cases where "innocence is at stake". Mr. Y says that his "innocence" is "at stake" in this case.
  8. "Innocence" is "at stake" in every criminal trial, but it is clear that the rare exception to confidential informant privilege does not arise when information might be helpful to the accused's defence. The information must be critical to the accused's defence, and there must be no other way to put the evidence to the jury - otherwise the hallowed privilege will prevail over the accused's right to make full answer and defence.
  9. This was a close and difficult call. In the end, I ruled that Mr. Y's "innocence" was "at stake" here, and that the identities of the confidential informants must be disclosed, failing which a stay would be entered. I provided brief oral reasons, with these further written reasons to follow.
  10. The Crown declined to disclose the identities of the confidential informants, and so I ordered a stay.

    The Issues
  11. The following issues arise on this application:
    (a) when is "innocence at stake" as a matter of law?
    (b) given the answer to (a), is Mr. Y's "innocence at stake"?
  12. The first question requires consideration of the principles set out in R. v. Scott, [See Note 5 below] R. v. Liepert, [See Note 6 below] R. v. Hunter, [See Note 7 below] R. v. McClure, [See Note 8 below] and R. v. Brown. [See Note 9 below] The second question requires consideration of Mr. Y's defence, and the extent to which the evidence to be obtained by piercing informant privilege is critical to establishing that defence.

    Confidential Informant Privilege
    The role of informers in drug-related cases is particularly important and dangerous. Informers often provide the only means for the police to gain some knowledge of the workings of drug trafficking operations and networks. It has been estimated that in the United States some 95% of all federal narcotics cases involve the work of informers ... The investigation will often be based upon a relationship of trust between the police officer and the informer, something that may take a long time to establish. The safety, indeed the lives not only of the informers but also of the undercover police officers, will depend on that relationship of trust.
    Trafficking in narcotics is a lucrative enterprise. The retribution wreaked on informers and undercover officers who attempt to gather evidence is often obscenely cruel. Little assistance can be expected of informers if their identity is not protected. There can be no relationship of trust established by the police with informers without that protection. If the investigation of drug-related crime is to continue then, to the extent it is possible, the identity of informers must be protected. [See Note 10 below]

    Note 5: [1990] 3 S.C.R. 979; (1990), 61 C.C.C. (3d) (S.C.C.), per Cory J.
    Note 6: [1997] S.C.J. No. 14 (S.C.C.).
    Note 7: (1987), 34 C.C.C. (3d) 14 (Ont. C.A.), per Cory J.A. (as he then was).
    Note 8: [2001] 1 S.C.R. 445, per Major J.
    Note 9: (2002), 162 C.C.C. (3d) 257 (S.C.C.)
    Note 10: R. v. Scott, at C.C.C. 313-314.
  13. The privilege attached to confidential informants is "an ancient and hallowed protection". [See Note 11 below] The rule must be applied strictly, so all information must be suppressed that might implicitly reveal the identity of the informant. Even "the smallest details may be sufficient to reveal identity", [See Note 12 below] so even "an apparently innocuous fact" [See Note 13 below] may need to be kept secret. The privilege belongs to both the Crown and the informer, which is one of the "reason[s] why the police and courts do not have a discretion to relieve against the privilege". [See Note 14 below]

    Note 11: R. v. Liepert at C.C.C. 390-392, per McLachlin J. (as she then was).
    Note 12: R. v. Liepert at C.C.C. 393, per McLachlin J. (as she then was).
    Note 13: R. v. Liepert, (B.C.C.A.), per McEachern C.J.B.C., quoted with approval by McLachlin J. in R. v. Liepert, at C.C.C. 393.
    Note 14: R. v. Liepert, at C.C.C. 392-393, per McLachlin J. (as she then was). In Drug Offences in Canada (3d ed.) at para. 18.203, the learned author prefers to describe a privilege that belongs to the informer, but which gives rise to obligations on the part of the Crown to protect the privilege.
  14. In the case before me, police received information from several informants that Mr. Ashun-Quainoo sells cocaine. He lives at 304-10 Kensington Road, but does not keep his supply of cocaine in his own living space. Instead, he keeps it in other specified living spaces in the same apartment building. [See Note 15 below]

    Note 15: Considerable care must be taken to avoid disclosing in the court's reasons that which is covered by the informant privilege asserted by the Crown. It is for this reason that my summary of these facts is so unparticularized.

    Innocence At Stake
  15. In R. v. McClure, the Supreme Court of Canada found that solicitor-client privilege ought to be pierced "only where core issues going to the guilt of the accused are involved and there is a genuine risk of a wrongful conviction". [See Note 16 below] The information to be put in evidence "must likely raise a reasonable doubt as to the accused's guilt". [See Note 17 below]

    Note 16: At C.C.C. 325, per Major J.
    Note 17: At C.C.C. 328, per Major J.
  16. In R. v. Scott, Cory J. provided the following analysis of the "innocence at stake" exception:
    Certainly, if the informer is a material witness to the crime then his or her identity must be revealed. In Roviaro v. United States, 353 U.S. 53, the United States Supreme Court held that the informer's identity would be divulged if the informer was a material witness. Canadian Courts have very properly followed the same path in circumstances where the informer is the only material witness to the crime: see R. v. Davies, [1982] O.J. No. 146 (Ont. C.A.)
    An exception should also be made where the informer has acted as agent provocateur. For example, in R. v. Davies, supra, the informer not only introduced the police to the accused, but also played an instrumental role in the trafficking scheme itself. In those circumstances, his identity had to be revealed. This exception could be properly extended to cases where the accused intends to rely upon the defence of entrapment. However, in order to rely on this exception, the accused will, as a general rule, be required to establish some evidentiary basis for the defence.
    A third exception may exist where the accused seeks to establish that the search was not undertaken on reasonable grounds and therefore contravened the provisions of s. 8 of the Charter. Even under these conditions, a court should strive to provide as much evidence as possible to the defence by means of editing the information on which the search warrant was based without disclosing the identity of the informer. That disclosure should only be made in circumstances where it is absolutely essential: see R. v. Hunter. [See Note 18 below]

    Note 18: R. v. Scott, at C.C.C. 315 (citations omitted), per Cory J.
  17. Crown counsel argued that this passage from Scott means that the "innocence at stake" exception only applies where the informant is a witness to the crime, is an agent provocateur, or on an application under s. 8 of the Charter. I do not accept that argument. In the paragraph preceding this list of three "exceptions", Cory J. quoted with approval the following statement from Beetz J.'s decision in Bisaillon v. Keeble:
    The rule is subject to only one exception, imposed by the need to demonstrate the innocence of an accused person. There are no exceptions in proceedings other than criminal. [See Note 19 below]

    Note 19: Bisaillon v. Keeble, [1983] 2 S.C.R. 60 at 93, per Beetz J. (emphasis added)
  18. There cannot be both "one exception" and "three exceptions". In my view, there is one exception, which is the principle set out in Bisaillon, adopted by Cory J. in Scott, and restated by Major J. in McClure. That principle, called "innocence at stake", arises when the information to be obtained by breaching informer privilege "likely raises a reasonable doubt as to the accused's guilt". The itemized exceptions that follow Cory J.'s statement of general principle are examples of when the principle arises. There is nothing in Cory J.'s recitation of these examples that indicates they are the only circumstances in which "innocence is at stake". [See Note 20 below]

    Note 20: MacFarlane, Drug Offences In Canada (3rd ed.), p. 18-19, para. 18.960.
  19. In Scott, an undercover police officer acted on information from a confidential informant that Scott was selling drugs. The officer purchased cocaine from Scott over a five-month period. Scott's counsel sought the name of the confidential informant in cross-examination. Counsel argued that this information would assist in advancing the defence of entrapment. The trial judge, German Dist. Co. J. (as she then was) "held that the disclosure of the name of the police informer was unnecessary because up to this point there was no evidence of entrapment." [See Note 21 below] Presumably, if evidence of entrapment did emerge, then the next question would have been whether disclosure of the identity of the informant would have materially advanced this defence to the point that it was likely to succeed, and that in the absence of this evidence the defence was not likely to succeed.

    Note 21: Scott, at para. 16, per Cory J., summarizing the ruling of German, Dist. Co. J.
  20. In R. v. Brown, the Supreme Court of Canada summarized the "McClure test" as follows:
    A) The Threshold Test
    To satisfy the threshold test, the accused must establish that:
    1) the information he seeks from the [confidential informant] [See Note 22 below] communication is not available from any other source; and
    2) he is otherwise unable to raise a reasonable doubt.

    If the threshold test is not met the privilege stands and the judge need go no further. If the threshold has been satisfied, the judge should proceed to the innocence at stake test, which has two stages:
    B) The Innocence at Stake Test:
    Stage 1: The accused seeking production of the [confidential informant] communication has to demonstrate an evidentiary basis to conclude that a communication exists that could raise a reasonable doubt as to his guilt.
    Stage 2: If such an evidentiary basis exists, the trial judge should examine the communication to determine whether, in fact, it is likely to raise a reasonable doubt as to the guilt of the accused.

    It is important to distinguish that the burden in the second stage of the innocence at stake test (likely to raise a reasonable doubt) is stricter than in the first stage (could raise a reasonable doubt).
    If the innocence at stake test is satisfied, the judge should order disclosure of the communications that are likely to raise a reasonable doubt. The onus is on the accused to establish each element of the test on a balance of probabilities. [See Note 23 below]

    Note 22: Brown concerned solicitor-client privilege. The "innocence at stake" exception to confidential informant privilege is the same as it is for solicitor-client privilege: R. v. Marshall, [2005] O.J. No. 3549 (Ont. C.A.).
    Note 23: Brown, at C.C.C. 268.
  21. It is not necessary that the accused be able to show that the information to be obtained by disclosure of the confidential informant will establish innocence affirmatively, although obviously such a case would cry out for disclosure. Our system of criminal justice never requires an accused person to demonstrate his innocence. The burden of proof never shifts from the Crown to the accused, or from proof beyond a reasonable doubt to proof on a balance of probabilities. If the accused raises a reasonable doubt, then the accused is acquitted. If the accused is acquitted, then the accused leaves the court an "innocent" man. And so, the threshold for piercing informant privilege turns on whether the evidence is critical to the accused raising a reasonable doubt as to his guilt, and not whether the evidence will affirmatively demonstrate his innocence.

    Is Mr. Y's Innocence At Stake?
    (a) The Theory of the Defence
  22. The Crown's case consists of the results of the search of the apartment shared by Mr. Y and Mr. Ashun-Quainoo. The drugs were found in a drawer in Mr. Y's bedroom. That evidence, alone, is sufficient for the jury to infer that Mr. Y owned the drugs and knew they were there. The quantity of the drugs is sufficient for the jury to conclude that possession was for the purposes of trafficking. In the absence of any evidence to the contrary, the case is likely a "lay-down" for the Crown.
  23. Mr. Y's defence is that the drugs are not his and he did not know they were there. In my view, the jury is not likely to accept this defence solely on the basis of Mr. Y's evidence. There would have to be some corroboration. The evidence of the confidential informers about Mr. Y's roommate could provide this corroboration. It supports two possible defence theories: (1) that the drugs belonged to Mr. Ashun-Quainoo, and not to Mr. Y, and were stored by Mr. Ashun-Quainoo in Mr. Y's bedroom; or (2) the drugs belonged to Mr. Ashun-Quainoo, and were stored elsewhere in the apartment, but were placed in Mr. Y's bedroom to direct attention away from Mr. Ashun-Quainoo and towards Mr. Y.

    (b) Evidence to Support the Defence Theory
  24. Without the information from confidential informants, there is no evidence to support the defence theory, other than the testimony of Mr. Y himself. Mr. Ashun-Quainoo could be called as a witness. How likely is it that Mr. Ashun-Quainoo would admit to the crime himself? It was not suggested to me that he would. [See Note 24 below] Two other apartments were searched. The apartment numbers were disclosed to the defence. The defence could call the occupants of these apartments as witnesses. However, there is no information before me that any of these occupants would confirm the theory of the defence. First, no drugs were found in these apartments. Second, if the defence theory is that the occupants did not know Mr. Ashun-Quainoo stored his drugs in their abodes, then the occupants would have no information. Alternatively, if these occupants knew that Mr. Ashun-Quainoo was using their residences to store drugs, how likely is it that they would come to court and admit those facts? Finally, if the safety and/or lives of the confidential informants are at risk if their identities are disclosed, then the occupants of the apartments would surely face similar risks if they testify to provide information about Mr. Ashun-Quainoo's drug-dealing practices.

    Note 24: The Crown had undertaken not to call Mr. Y as a witness, and the defence did not intend to do so.
  25. I conclude that Mr. Y's defence will rest solely on his own testimony, unless the information from the confidential informants is put before the jury. The threshold test requires that the evidence be unavailable from any other source. I take this to mean any other source other than the accused. If confidential informants are the only witnesses who can corroborate the evidence of the accused, then the "necessity" aspect of the threshold test is made out.
  26. What are the prospects of the jury finding a reasonable doubt on the basis of Mr. Y's evidence if there is no other evidence tending to confirm his story? As I suggested to Crown counsel in oral argument, the chances are "slim to none".
  27. What are the prospects of the jury being left with a reasonable doubt if the information from the confidential informants is provided? Those prospects are much stronger. I cannot conclude that the jury will necessarily accept Mr. Y's defence on the strength of this information, but his defence will be strengthened immeasurably.

    Necessity Revisited
  28. The defence seeks production of the identity of the confidential informants as its primary relief on this application. In the alternative, it asks that the information provided by the informants be put in evidence through the testimony of the officers with whom the informants spoke. This alternative would require a finding that this evidence can be received as an exception to the principle against hearsay evidence.
  29. The alternative relief seems more attractive than piercing confidential informant privilege. The majority in Brown noted that "some rules of evidence may be applied with something less than their usual degree of rigor" [See Note 25 below] to avoid a wrongful conviction. In concurring reasons, Arbour and L'Heureux-Dubé JJ. found:

    Logic, principle and policy dictate that is one of the
    most stringent exclusionary rules, the solicitor-client
    privilege, is to yield to concerns about convicting an
    innocent person, other exclusionary rules, such as the
    hearsay rule, should yield first. [See Note 26 below]

    Note 25: Brown, at para. 42.
    Note 26: Brown, per Arbour and L'Heureux-Dubé, at para. 117,
  30. The rule against hearsay guards against unreliable evidence. In this case, receipt of the hearsay evidence could prejudice the Crown, since the evidence favours the defence theory of the case. However, there are other problems associated with receiving the evidence through the testimony of police officers. Those problems track right back to the issue of piercing informant privilege.
  31. The Crown provided a redacted version of the affidavit of Constable Smith. The redactions remove almost all of the details of the information provided by the informants. I reviewed the redactions and concluded that most of them fit within the wide area of protection required to ensure that the identity of informants is not revealed. Even where it was not clear to me that disclosure would tend to reveal an identity, I generally deferred to the judgment of police and the Crown, bearing in mind that disclosure of even "innocuous details" could reveal a confidential informant's identity. The result is a narrative devoid of particularity. If the general thrust of the information was taken as true for the purposes of trial, this lack of particularity could be explained to the jury. However, the Crown does not accept the general thrust of the information. How can a conflict over the substance of this evidence be weighed by the jury in these circumstances?
  32. It cannot be. The particularity of information provided by informants enhances the credibility of that information. But the jury will not hear that if confidential informant privilege is applied. The reliability of the information might be put in doubt through cross-examination by the Crown, but again only if the particulars behind the generalities can be explored. It is simply unworkable to put this information to the jury on a contested basis without infringing confidential informant privilege.
  33. The proposed evidence meets the "necessity" branch of the Khan test. [See Note 27 below] However, there are insufficient indicia of reliability to cross the threshold for admissibility. In particular, the Crown is not willing to accept the information provided by the informants at face value, given that the searches did not yield results consistent with the information. Notwithstanding this finding, I would have been inclined to relax this aspect of the Khan test to avoid the greater problem of piercing informant confidentiality, if that could have been workable. The serious difficulties eliciting this evidence from police officers without disclosing "innocuous details" tending to identify the informants undercuts this approach as a viable alternative.

    Note 27: (1990), 59 C.C.C. (3d) 92 (S.C.C.).
  34. The court suggested another alternative: that the Crown and defence develop a set of agreed facts respecting the information obtained from confidential informants. It would have been possible to craft agreed facts in a way that did not disclose sensitive information about the informants, and yet put before the jury the essential information that there are people who identify Mr. Ashun-Quainoo as a drug dealer who secretes his drugs in the living spaces of other people. The defence was willing to have the evidence go before the jury in this fashion, but the Crown was not.
  35. Even where the law is nuanced, textured, evolving, and strives to find a balancing of competing interests, court orders can be very blunt instruments. I do not find it satisfactory that this prosecution was brought to an end through an evidentiary ruling. All avenues had to be explored prior to making such a ruling - and to be clear, it was obvious during argument that the Crown would stay the charges rather than disclose the identity of the confidential informants. However, whatever course was taken, there was going to be some disadvantage to one side or the other. The Crown wanted the disadvantage placed entirely on the accused, to the point where a tenable defence would have little chance to succeed. That raised fundamental issues of trial fairness. I so concluded for the following reasons:
    (1) Police viewed the information from the confidential informants as sufficiently reliable to use it to obtain the search warrants. The indicia of reliability in Constable Smith's affidavit were high enough to persuade the learned Justice of the Peace to rely upon the information and issue the warrants.
    (2) That information could have been summarized as an agreed statement of facts, or put in through police officers, without disclosing the identity of the confidential informants. However, the price of having the information go to the jury in that fashion is that the Crown would not have been able to challenge it.
    (3) The accused had little chance of success without the information, and a reasonable prospect with that evidence. In my view, trial fairness required that the jury have the information.
  36. In conclusion, to apply the Brown summary of the McClure test:

    A) The Threshold Test

    1) I am satisfied that the information sought from the confidential informants is not available from any other source. The Crown refused to put the information in as agreed facts, so that avenue was not available. The evidence cannot be elicited as hearsay from police witnesses, because the evidence does not meet the reliability requirements under R. v. Khan, a point emphasized by the Crown, and underscored by the Crown's desire to cross-examine on that information. I would have been inclined to relax this aspect of the Khan test, as a "lesser evil" to piercing confidential informant privilege, as suggested in Brown. However, I see no practical way in which to present this hearsay evidence to the jury that will not lead to a need to pierce that privilege through disclosure of details - some "innocuous" and some less so - that would tend to disclose the identity of confidential informants. This conclusion flows from the fact that the substance of the information from the confidential informants is not accepted by the Crown.

    2) I am satisfied that Mr. Y will not be able to raise a reasonable doubt without the information from the confidential informants. The defence theory - that the crime was committed by some other person - would surely require corroboration for it to be persuasive. I am aware that privileged information cannot be ordered to bolster or corroborate evidence that is already available to the accused. However, this point surely does not apply to a blanket denial from an accused person, evidence that is available to any accused person. Where there is a prima facie case against an accused person, and there is independent evidence supporting a defence, the accused should surely not be restricted to a blanket denial - a denial that is likely to be rejected if there is no other evidence to support it.

    Thus I am satisfied that the threshold test has been met.

    B) The Innocence at Stake Test

    Stage 1:
    Mr. Y has demonstrated that communications exist that could raised a reasonable doubt as to his guilt. This is not a fishing expedition. This is not idle speculation as to what the informants may have told police. Informants have told police information that is consistent with the defence theory that the drugs belonged to Mr. Ashun-Quainoo. I am satisfied that this information "could" raise a reasonable doubt as to Mr. Y's guilt.

    Stage 2: I did examine the communications. I cannot comment on their substance in detail without imperiling the informant privilege. I note two things about these communications: first, they are not specifically in respect to the drugs that are the subject matter of the charges before this court. None of the confidential informants identifies these specific drugs, located in Mr. Y's bedroom, as belonging to Mr. Ashun-Quainoo. In fact, none of the confidential informants refers to heroin, but instead to cocaine. These are points that might bear on what a jury would make of the defence, but they are not fatal to the defence. I conclude that the information from the confidential informants could well give rise to a reasonable doubt in the mind of the jurors. But is it "likely" to give rise to that doubt? This is almost an imponderable. I would have to hear all of the evidence to make a realistic prediction of the likely results. Even then, this might be a "close" call for the jury. I am satisfied that, with this evidence, there was a real and substantial chance the jury would acquit. Given that the standard of proof for the Crown is so high, on the strength of the information before me, I find that it is likely the defence would succeed, by which I mean that it is more likely than not that the jury would have a reasonable doubt.
  37. For these reasons I conclude that Mr. Y's innocence is at stake, and confidential informant privilege ought to be pierced, failing which the charges must be stayed.
  38. I commend all counsel for their thorough preparation and thoughtful arguments.
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