Category Archives: Disclosure

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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Illegible Police Notes

A number of recent cases have examined disclosure in the context of police notes; more specifically, in cases where the police notes have been illegible. This post is not meant to cite change in our note-taking ways, but rather to report the consequences should our handwriting be illegible. This is a brief summary of what the courts have decided:

R. v. Lalani [2014] O.J. No. 108 (O.C.J.):

“I disagree with Ms. Stackhouse’s characterization of the Crown’s disclosure obligation. The Crown has a duty to disclose to an accused “all relevant information” in its possession or under its control. … In order to discharge this duty the Crown is under an obligation to request and procure from the police all relevant information and material concerning the case. … As a result, in my view, the provision of a typed version of one of the investigative officer’s notes where that officer’s handwritten notes were illegible was more than simply a courtesy; it was part of the Crown’s disclosure obligation.”

R. v. Guzman [2014] O.J. No. 2946 (O.C.J.):

“I agree that if officer’s notes prove, objectively, to be illegible, the Crown has an obligation on the request of defence counsel to provide a typed version of those notes.”

And finally, the older case of R. v. Aquino [1999] O.J. No. 5972 (S.C.J.):

“… Illegible written information does not constitute disclosure.”

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Police occurrence reports are “records” within the definition of s. 278.1 CC and thus subject to the Mills regime.

R. v. Quesnelle 2014 SCC 46 – this decision was just handed down today by the Supreme Court of Canada. The respondent, Vincent Quesnelle, was charged with sexually assaulting two complainants, T.R. and L.I.  Prior to trial, CBC Radio aired a documentary about the complainant T.R. (a street sex worker), during which the lead investigator in this case indicated that she had obtained and reviewed four or five police occurrence reports which involved T.R. but were not made in the course of the investigation that resulted in the charges against the accused.  The detective did not include the reports in the investigatory file.

Before trial, the accused made an application seeking disclosure of certain police occurrence reports which involved a complainant, but which were not made in the course of the investigation of the charges against him.  The trial judge ruled that the occurrence reports at issue were “records” under the Mills regime, specifically s. 278.1  of the Criminal Code .  As such, the accused applied for disclosure of the occurrence reports pursuant to s. 278.3 of the Code.  The trial judge dismissed the application and the accused was ultimately convicted.  The Ontario Court of Appeal allowed the accused’s appeal on the basis that the police occurrence reports were not “records” under the Mills regime and should have been part of regular Crown disclosure under R. v. Stinchcombe, [1991] 3 S.C.R. 326.  The Court of Appeal therefore ordered a new trial and the matter was appealed to the SCC.

In sexual offence cases, the Criminal Code limits the disclosure of private records relating to complainants and witnesses.  The relevant provisions, ss. 278.1  to 278.91 , known as the Mills regime, permit disclosure only where a record is likely relevant and its disclosure is necessary in the interests of justice.  The regime applies to “records” that contain personal information for which there is a reasonable expectation of privacy, unless they are made by persons responsible for the investigation or prosecution of the offence.  The issue on appeal was whether these provisions apply to police occurrence reports prepared in the investigation of previous incidents involving a complainant or witness and not the offence being prosecuted.  The question was whether these unrelated police occurrence reports count as “records” as defined in s. 278.1 , such that the statutory disclosure limits apply.

The Mills regime establishes a two-part process through which accused persons may apply for disclosure of such records.  First, a record ― whether in the hands of the Crown, the police, or a third party (s. 278.2(2) ) ― will only be produced to the court where the trial judge is satisfied that the record is likely relevant to an issue at trial or to the competence of a witness to testify, and that disclosure to the court is necessary in the interests of justice: s. 278.5 .  Second, after reviewing the record, the judge may only order disclosure to the accused if the record is likely relevant and disclosure is in the interests of justice:  s. 278.7 .

The ONCA ruled that the object of s. 278.2 and the intention of Parliament, as well as the words of s. 278.1 read in their grammatical and ordinary sense, indicate that police-made occurrence reports are excluded from the application of the s. 278 regime and that police occurrence reports do not qualify as “records” for the purposes of s. 278.2, and therefore do not fall within the realm of private records Parliament intended to target in enacting ss. 278.1 to 278.9.

A unanimous SCC disagreed with the ONCA. The SCC concluded that the Mills regime applies to police occurrence reports that are not directly related to the charges against the accused:

“Privacy is not an all or nothing right. Individuals involved in a criminal investigation do not forfeit their privacy interest for all future purposes; they reasonably expect that personal information in police reports will not be disclosed in unrelated matters.  Moreover, while the regime exempts investigatory and prosecutorial records, that exemption applies only to records made in relation to the particular offence in question.”

Accordingly, the SCC agreed with the trial judge that the unrelated police occurrence reports at issue were “records” within the definition of s. 278.1  and thus subject to the Mills regime.  The trial judge was entitled to conclude that the reports should not be disclosed.  The SCC allowed the appeal, set aside the order for a new trial, and restored the conviction, and remitted the sentence appeal to the Ontario Court of Appeal.

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