Monthly Archives: September 2015

Disclosure in respect of informant handler notes

Officers that have “handled” human sources (informants) understand the delicate balance between handler notes, intelligence (information), and protection of the informant’s identity. Although practices vary slightly amongst police agencies, most dictate that all intelligence derived from a confidential informant be reproduced in the handler notes (SHNs), and those notes are then carefully guarded and disclosure, even to other members of the police force, is severely restricted. Under that protocol, only non-identifying information from the handler notes will be downloaded into source debriefing reports (SDRs). The source debriefing reports, or parts of them, are often then “downloaded” into the ITO process, for example.

Although not news, this battle has been fought in the courts for a number of years. Two recent decisions, out of two different jurisdictions, have again examined the issue of disclosure in respect of informant handler notes. In R. v. Lemke 2015 ABQB 544, there was a discrepancy between the ITO and the source debriefing reports in relation to the phrase “possession to commit crimes and for protection” in relation to the accused’s possession of a firearm, which phrase was found in the ITO, but not in the source debriefing reports. Earlier in the proceedings, the court denied access to the handler notes. Later, the source debriefing reports were reviewed by the prosecutor and the phrase was not contained in those reports, so the defence had a legitimate question about the source of that information in the ITO as far as the court was concerned. The new development was that the prosecutor had access to the unredacted source debriefing reports and advised the court that the phrase “to commit crimes and for protection” used in relation to the accused’s possession of a firearm” was not found in those reports.

In Lemke, the affiant did not consult any written materials, including the handler notes and the source debriefing reports, but rather spoke with the handlers of the confidential informants. The court said the absence of the phrase in the written materials did not mean that the phrase was not orally conveyed by the handler and as such, it may become important to know whether this was a phrase which a handler recalled, but did not include in his notes, or whether this was a phrase that was reduced to writing; a writing that may not be able to be disclosed to protect the identity of a confidential informant. Although this was not an “innocence at stake” situation, Mr. Lemke did not ask for, or want, disclosure of the identity of the confidential informants. He proposed that the prosecutor review the source handler notes and advise whether that phrase was found in the notes, but could not be extricated, therefrom without tending to disclose the identity of a confidential informant.

The court said the only reason why the Crown would not be required to disclose the requested information was if the disclosure would tend to disclose the identity of a confidential informant (see, for example, R. v. Leipert [1997] 1 S.C.R. 281). Mr. Lemke was content to have the prosecutor review the handler notes and advise the court whether the predicate phrase was contained in those notes. If the phrase was not contained in the notes, the prosecutor would so advise. If the predicate phrase was contained in the notes, either the statement could now be produced to the defence, or, Mr. Lemke would be satisfied with a statement from the prosecutor to the effect that the phrase was so intertwined with other material that it could not be extricated from that material without providing information which may tend to disclose the name of a confidential informant. The court ruled that he discrepancy was important because of its connotations of regularity of possession and purpose of possession, and thus ordered the prosecutor to provide the disclosure outlined above.

In R. v. McKay 2015 BCSC 1510, the accused applied for disclosure of materials relating to information obtained from the confidential informants referenced in the Information to Obtain (ITO). The accused was charged with possession of cocaine for the purpose of trafficking as a result of a police search of a residence pursuant to a search warrant and sought to challenge the warrant. Police relied on information received from two confidential informants in obtaining the search warrant. The accused sought disclosure of the source handler notes, the source debriefing reports, the officer’s notes made in anticipation of obtaining the warrant, and all notes and reports made by him after having conversations with the informants’ handlers. In the residence, police located approximately a kilogram of cocaine, paraphernalia associated with cocaine trafficking, and documents suggesting Mr. McKay’s residency in the home.

The defence did not invoke the “innocence at stake” exception to informer privilege, and acknowledged that if the court ordered disclosure, the Crown must edit the materials to protect the identities of the two informants. The Crown said there was nothing to disclose, because instead of taking notes, the officer from the outset amalgamated all of the information she received into a single computer document, which then became the ITO. As to the SHNs and SDRs, the Crown resisted disclosure on the basis that these materials were irrelevant and in any event subject to informer privilege.

If you recall, under Stinchcombe [[1991] 3 S.C.R. 326.], the Crown must disclose to the accused all relevant and non-privileged information in its possession. Some courts have ruled that Stinchcombe applies “with full force” in the Garofoli context, so that the Crown’s obligations with respect to disclosure go beyond the narrow parameters contemplated by some courts (for such discussions, see, for example, R. v. Bernath, 2015 BCSC 632, R. v. Edwardsen, 2015 BCSC 705, R. v. Whitton, 2015 BCSC 859, R. v. Barzal (1993), 33 B.C.A.C. 161, R. v. Gallant, 2010 NBQB 187, and R. v. Roy, 2014 BCPC 70). Can informant-related materials be considered “fruits of the investigation” subject to the first-party disclosure regime established in Stinchcombe?

The court ruled that the fruits of the investigation can also incorporate SHNs and dissemination reports because these materials reflect and correspond to the same information presented in the SDRs received in response to an investigative inquiry. It is the informant intelligence itself which becomes particularized, not merely one class of documents or materials which contain the intelligence. However, as with SDRs, the fruits of the investigation will not automatically incorporate all SHNs or even the entirety of a given SHN. Rather, only those portions of SHNs which relate to the SDR information provided in response to an officer’s specific inquiry become fruits of the investigation, because only those portions have ceased to be nonspecific background intelligence. The information in an SDR will be traceable, at least by the source handler, to a specific interaction between a source handler and informant, as documented in a single SHN or set of SHNs, if the handler follows the protocol established in source management training.

Again, applying Leipert, the court ruled that privilege attached only to information which reveals, explicitly or implicitly, the identity of a confidential informant. The privilege does not prevent disclosure of information which does not reveal the identity of a confidential informant. At the same time, it may be that much of the information in the informant-related materials, other than the details provided in the ITO, would tend to reveal the identity of confidential informants. As a result, it may be necessary to redact entire paragraphs in order to protect the identity of an informant.

The court said that even if informant-related materials cannot assist the accused in challenging a warrant or on an application to cross-examine an affiant, those materials must nevertheless be disclosed pursuant to Stinchcombe if they constitute fruits of the investigation and are not clearly irrelevant to other issues on the trial. The court ordered the Crown to review any SHNs, SDRs, or dissemination reports containing the intelligence from both informants obtained by the officer (affiant) in relation to the investigation of Mr. McKay, and disclose any such materials that are not clearly irrelevant, subject to editing to protect informer privilege.

In such applications, however, merely because informant-related materials constitute fruits of the investigation does not mean that they must necessarily be disclosed. The Crown must still review the materials and may withhold disclosure if they are clearly irrelevant to the proceeding. Further, disclosure of relevant informant-related materials may nevertheless be refused on the grounds of informer privilege where applicable, on a case-by-case basis.

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The police power to conduct a ‘safety search’ before administering an approved screening device test during a traffic stop.

An earlier post of mine (May 6th, 2015) discussed a case out of the Alberta Court of Queen’s Bench, R. v. Wondu [2015] A.J. No. 430, involving the standard practice of some officers of conducting a pat-down search to make sure individuals do not have a weapon on their person before being seated in a police vehicle.  Another lower court decision out of the same province has again considered the police power to conduct a ‘safety search’ before administering an approved screening device test during a traffic stop.

In R. v. Schwab 2015 ABPC 180, the officer observed a motor vehicle being operated in an industrial area of the City of Camrose. Businesses were closed at that time of day and the officer was aware that there had been several ‘B & E’s’ in the area. When he saw the vehicle commit a traffic infraction, he signaled it to stop. Schwab was driving the vehicle; the officer approached and advised Schwab of the reason his vehicle had been stopped. He was directed to produce his driver’s licence, registration and insurance documentation. The officer noted that Schwab had flushed cheeks, bloodshot eyes, and had a smell of liquor on his breath. Schwab denied having consumed alcohol. The officer returned to his police vehicle, checked the documentation provided and found it to be in order. No concerns for safety were raised by any information received or observations made by the officer during the course of these checks. Indeed, he conceded that Schwab was cooperative and responsive to all requests made and directions given. The officer’s earlier observations nevertheless left him with a suspicion that Schwab had been consuming alcohol and, as a result, he elected to seek a sample of Schwab’s breath for analysis by an approved screening device (‘ASD’). Schwab was directed to exit his vehicle and accompany him to his police vehicle. Before having him sit in that, however, Schwab was required to undergo a cursory, ‘pat down’ search (‘safety search’).

Schwab was instructed to face the police vehicle and put his hands on it. The officer then patted down Schwab’s body “from top to bottom” and “front to back” over his clothing. In addition, the officer inserted a finger into each of Schwab’s front pants pockets and checked the pockets of his jacket. The search lasted less than a minute. The officer testified that he had been trained to undertake safety searches of detainees before placing them in the rear of a police vehicle. He followed that training as a standard practice. When questioned about the need for a safety search in this particular case, he testified that every detainee at a traffic stop is an ‘unknown’. It was not until the conclusion of his dealings with Schwab that he could satisfy himself that there were no safety concerns. For his part, Schwab submitted to the search, “Because that’s what you do; you cooperate.” The officer did not follow a practice of administering ASD tests through the window of a motorist’s vehicle. He was of the opinion that this practice would raise “safety concerns”. The safety concerns raised by that practice were not particularized in evidence, nor was there any evidence relating to the officer’s ability or inclination to administer an ASD test in another fashion.

The Trial Judge examined whether the safety search prior to administering the ASD test violated Schwab’s Charter, s. 8 right to be secure against unreasonable search or seizure. Defence submitted that the safety search was not authorized by law in that routine searches of detainees who are to undergo ASD testing constitutes a serious violation of a detainee’s Charter, s. 8 right. The search occurs in public and involves physical contact with his or her body. The prosecution submitted that the officer was entitled to consider the fact that this vehicle was in an industrial district in the early morning hours for no apparent reason and that there had been reports of B & E’s in that area. It would be logical to assume that someone in that area may have house-breaking tools in his or her possession, and those tools might pose a danger if (s)he was not secured prior to taking a seat in the rear seat of a police cruiser. While Schwab’s Charterprotected interests were adversely affected by the search, it was merely a ‘pat-down’ search as opposed to a strip search or search of a dwelling-house. It took less than a minute and nothing was found as a result of the search.

To reiterate some general principles, the safety search was undertaken without prior judicial authorization, so it constituted a “warrantless search”. Warrantless searches are presumptively unreasonable (see: R. v. Nolet, [2010] 1 S.C.R. 851, at para. 21; R. v. Golden, [2001] 3 S.C.R. 679, at para. 84, and many others. The prosecution may nevertheless prove that a warrantless search was authorized by law. Its burden in doing so is on a balance of probabilities. See: R. v. Buhay, 2003 SCC 30, for example).

The Trial Judge commented that traffic stops occur throughout Canada and on a daily basis. Some traffic stops may be targeted, meaning the police may know who is operating or inside a motor vehicle and take steps to ensure officer safety, having regard to the identity or nature of those specific individuals. But Canadian criminal law also authorizes random traffic stops for the purpose of ensuring a driver’s status (eg. driver’s licence, vehicle registration and insurance) and his or her safe operation of his or her vehicle (egs. mechanical roadworthiness of a motor vehicle, driver sobriety and attention). See: R. v. Ladouceur, [1990] 1 S.C.R. 1257; R. v. Hufsky, [1988] 1 S.C.R. 621. The randomness of these stops contributes to their efficacy as the drinking driver lawfully operating a motor vehicle might be stopped just as frequently as the non-drinking driver. It is the very ‘randomness’ of these traffic stops, said the Judge, that brings about situations where police are dealing with strangers or individuals previously unknown to them. Further, said the Judge, most of these ‘unknown individuals’ will not pose safety concerns for the police, but there are those who will, and a police officer approaching a vehicle at roadside will frequently be unable to distinguish the former from the latter.

Our courts have recognized the difficult circumstances faced by police and the need for the law to develop in such a way that they can carry out their duties in safety (R. v. MacDonald, 2014 SCC 3). The frequency of traffic stops and the inherent dangers associated with them create significant safety concerns for the police. What steps may police lawfully take in order to ensure their safety when undertaking a traffic stop? Can those steps be prophylactic and unsupported by a safety inquiry? Or must they be grounded in a reasonable suspicion or belief that their safety is in danger in the facts of a specific case?  All good questions examined by the Trial Judge.

Before police can lawfully search a motorist detained at a traffic stop, (s)he must first believe on reasonable grounds that there was a threat to his or her safety, or the safety of the public. There must be both a subjective belief by the officer in that threat as well as an objective basis for that belief. In other words, did the officer subjectively believe that his safety or the safety of the public was threatened in this case before the search was undertaken. And second, was there an objective basis for that belief here. Since MacDonald, given the high privacy interests at stake in such searches, the search will be authorized by law only if the police officer believes on reasonable grounds that his or her safety is at stake and that, as a result, it is necessary to conduct a search.

The officer gave evidence that concern about B & E’s in the area was an additional reason for stopping Schwab’s vehicle; not as a reason for making him feel unsafe. And even if he had initial reservations in that regard, it was clear that the safety search was undertaken at a time when those reservations had been dispelled, said the Judge. At the time of the safety search, the officer was pursuing what had every appearance of being a routine ‘impaired driving’ investigation. Indeed, in his testimony, he acknowledged having no safety concerns at the time of his safety search. While a policy or practice may guide a police officer in the exercise of a power, it cannot supplant rules of law (statutory or common law) regulating that exercise, as recently expressed by the court in R. v. Muller, 2014 ONCA 780.

In R. v. Aucoin, 2012 SCC 66, the court considered circumstances involving a traffic stop by a police officer (I’ve already made prior posts on this case, so I won’t state the facts again here).  Applying the principles discussed in Aucoin to this case, was it ‘reasonably necessary’ for the officer to administer the ASD test in the rear of his police vehicle, given the fact that he was not prepared to do so without an attendant safety search? Were there other reasonable means to ensure officer safety by administering the ASD test in another manner? The officer testified that he undertook ASD testing in the police vehicle for safety reasons. Unfortunately, there was no evidence relating to other methods of administering the test, nor the reason why any of those methods would be ‘unsafe’.

The Trial Judge pondered why could the test not be administered through the open window of Schwab’s vehicle? Or outside both vehicles on the shoulder of the road? Was the police vehicle equipped with a safety shield and, if so, why would this not sufficiently secure officer safety? Were there other, less intrusive means of ensuring officer safety?

The Trial Judge said that the Crown had not proven that there were no other reasonable means of administering the ASD test except by having Schwab sit in the rear of his police vehicle. In addition, the Judge could not conclude that there was no other means of securing the officer’s safety except by having Schwab undergo a safety search before seating him in the rear seat of the police vehicle. In short, it had not been demonstrated that undertaking a safety search and having Schwab sit in the rear of the police vehicle were the only means of undertaking ASD testing in a safe manner. Since safety searches may be undertaken as an exercise of police power only where the investigator has reasonable grounds to believe that his safety (or the safety of the public) is in danger, in the Judge’s view, the Applicant had proven on a balance of probabilities that the officer’s safety search of Schwab in this case constituted an unreasonable search as that term is used in the Charter, s. 8.

Of course, the Judge conceded that there are many examples of traffic stop situations where safety searches are authorized, but this case was not one of them. As was the case in Wondu, the Trial Judge here excluded the evidence following the Grant analysis.

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