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  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 [ 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.