[1]           Mr. Loewen, the Accused, brings a pre-trial application for wide ranging disclosure of informer information used in the investigation of the offenses.  In the alternative he seeks an order that the Court review the confidential informant material in order to challenge the Crown’s claim of informer privilege over the material sought to be disclosed. 

[2]           The Court was initially asked to make orders either compelling disclosure of the informant material directly to counsel for the accused, though at the hearing they took the position that the material ought to be provided to the Court for review.  The Court was not made aware of the contents of the unredacted Information to Obtain the search warrant and is in the position of not knowing the contents of the informant information which the issuing Justice of the Peace was aware of when she issued the warrant. 

[3]           In an earlier order I had dismissed the defense application with reasons to follow, these are those reasons. 

[4]           Sometime before December 6^th, 2012, Constable Todd Woon swore an information to obtain a search warrant for the residence and motor vehicle of Mr. Loewen.  That information relied heavily on confidential informer information to form the officer’s grounds for belief that the residence in question contained evidence of a crime.  The vast majority of the informer information, including the reasons why the informer was thought to be reliable, was deliberately placed in separate exhibits attached to the Information. 

[5]           The information provided by the informants was the subject of some investigation to attempt to corroborate the information provided. Very little of substance could be corroborated, presumably because of the nature of the information provided by the informants.  Indeed the confirmatory information in the Information to Obtain is limited primarily to confirming that Mr. Loewen lives in the home alleged by the informant and that he owns the automobile alleged by the informants and that some known street level drug dealers alleged to be associates of Mr. Loewen were seen attending to his residence.  There is also some corroborative evidence in the information that has been redacted and is therefore unavailable to the Court on this application. 

[6]           The warrant to search Mr. Loewen`s residence was issued on December 6^th, 2012 permitting a search of the residence and vehicle belonging to Mr. Loewen. On December 7^th, 2012, Mr. Loewen was arrested without warrant driving his motor vehicle some distance away from the residence.  Some moments later the police then conducted a “no knock” entry to the residence with the use of a battering ram and conducted a thorough search of the residence. 

[7]           A large quantity of cocaine and heroin was found in the residence together with $10,000.00 in cash and other drug paraphernalia suggesting that the narcotics were possessed for the purpose of trafficking. 

[8]           Mr. Loewen was charged with Possession of the Cocaine, Heroin and Marijuana for the purpose of trafficking.  He elected trial by Provincial Court Judge and entered a plea of not guilty.  He gave notice that he intends to challenge the admissibility of the evidence found during the search of his residence and automobile. Of particular importance to this ruling, he gave notice that he intends to challenge the admissibility of the evidence found during the search of the residence as a result of violations of his Charter rights arising from the execution of the search warrant. 

[9]           Prior to trial Mr. Loewen brought an application for disclosure of:  

[10]        In the alternative he sought an order that a hearing be ordered compelling the Crown to prove the existence of informer privilege.  During argument he conceded that the material sought was covered by informer privilege.  He then refined his application to seek an order that the Court review the informer material in order to determine what material ought to be disclosed. 

[11]        During argument the Crown agreed to provide the Court with a copy of the unredacted information to obtain the search warrant. Mr. Loewen opposed that application, noting that he intended to ultimately argue that the redacted information, standing alone, would not be sufficient to establish reasonable and probable grounds to uphold the warrant. R. v. Garofoli 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421, para 79 

[12]        A voir dire was declared by consent in which evidence was led regarding the search of the residence. It was agreed by counsel that the evidence led in the voir dire could be used by the Court to understand the context of the arrest and the execution of the warrant. It was agreed that the evidence was not evidence that the Court should consider as amplification of the information as that term is used in Garofoli (id.) 

[13]        The evidence shows that Mr. Loewen’s house was the subject of surveillance for some weeks prior to the arrest and search. During that time Mr. Loewen and his girlfriend were seen to come and go from time to time.  He was observed to leave the residence in a grey Volkswagen Passat, though that vehicle is often described in the officer’s notes as a Jetta. 

[14]        On the day of the search the officers conducting the search debriefed early in the morning. At that time it was determined that none of the traditional risk factors applied to the search, in spite of which it was decided to do a “no knock hard entry”. A “hard entry” means that the door was going to be battered down and the “no knock” means that the entry would take place prior to announcing the presence of the police.  The entry was going to be conducted after Mr. Loewen was observed to leave the residence and Mr. Loewen was going to be arrested without warrant after he left the residence.  

[15]        The morning of the search Mr. Loewen was observed leaving the residence in his vehicle. He was arrested shortly thereafter a short distance from the residence. Immediately thereafter the search team was instructed to enter the residence. Several officers attended at the front door. The door was smashed in with a battering ram and the officers swarmed into the house with guns drawn.  The residence was carefully checked to ensure there were no other occupants and the process of inventorying the contents began. 

[16]        In the residence officers found large quantities of cocaine and heroin and a smaller quantity of marijuana. They also found a weapon designed to produce an electric shock sufficient to disable a person referred to variously as either a Taser or a stun gun. They found scales, score sheets and several documents such as utility bills linking Mr. Loewen to the residence. 

[17]        At the police station the accused was provided access to counsel and provided a statement, the contents of which are not relevant to these proceedings so far, but may become relevant to other issues such as any potential section 24(2) analysis. 

[18]        A cell plant was also placed with Mr. Loewen while he was in custody, though no evidence has been led with respect to the fruits, if any, of that investigative technique.  Mr. Loewen was released on process some time later. 

[19]        Prior to trial counsel for Mr. Loewen sought disclosure and received a copy of the information to obtain the search warrant (the ITO) sworn by Cst. Woon (the Affiant).  The ITO was heavily redacted, purportedly to eliminate any information which would disclose the identity of the confidential informants.  In spite of this editing it is apparent that the ITO is based largely on the information provided by confidential informants.  This confidential information was first gathered by the “handlers” of each of the informants; their information was then synthesized into a report.  This report was then passed on to the Affiant.  It is these reports and the notes taken by the handlers which are the subject of this application. 

[20]        There is no question that the confidential information provided to the affiant from the handlers is fundamental to the issuance of the warrant.  Virtually all of this information, except for some bald assertions as to its contents and reliability, has been edited out of the information. 

[21]        It is fundamental to our fair trial process that information ought to be disclosed if it is relevant to a matter in issue.  The threshold for disclosure is very low.  R. v. Stinchcombe (1991) 1991 CanLII 45 (SCC), 3 SCR 326; R. v. McNeil (2009) 1.S.C.R. 66.  One of the few exceptions to this broad requirement of disclosure is if the disclosure risks disclosing the identity of the informant, subject to certain limitations such as the “innocence at stake” exception which does not apply here. 

[22]        Disclosure of the informant information has many valuable purposes for the defense which would doubtlessly assist them to make full answer and defense.  Review of the material would allow them to determine whether the ITO was drafted in a fraudulent or misleading way or contained material non-disclosures such as to vitiate the warrant.  Similarly, the information might well be a fruitful source of material to challenge the police reliance on same or even to assist in the discovery of other courses of enquiry when assessing the guilt or innocence of the accused.  I would suggest that, but for the existence of the informer privilege, few would argue that the material sought would not be subject to an order compelling disclosure.  In this sense the inquiry is certainly not a “fishing expedition” any more than any request for disclosure might be seen as a fishing expedition. 

[23]        In my view the answer to both issues before the Court lays in an assessment of the process in which the Court is presently engaged. The defense is seeking to challenge the validity of a search warrant issued by a judicial officer.  The guilt or innocence of the accused is not before the Court. .The Court is properly engaged in the processes developed by the Supreme Court of Canada in R. v. Garofoli (1990) 1990 CanLII 52 (SCC), 2 SCR 1421.  Although the case at bar involves a search warrant and Garofoli involved a warrant to obtain a wiretap authorization the analysis is the same.  R. v. Barzal (1993) 1993 CanLII 867 (BC CA), 84 C.C.C. (3^rd) 289 (B.C.C.A.) As the defense are challenging the issuance of the search warrant, relevance must be assessed in terms of whether the search warrant should or should not have been issued.  In Garofoli the Supreme Court of Canada established a relatively simple process by which these issues can be determined. That process is designed to both protect the integrity of the judicial processes and the right of the accused to make full answer and defense while, at the same time ensuring that informer privilege is protected.  In that case the Court articulates a six step process. At paragraph 1491-96 Mr. Justice Sopinka writes: 

[24]        In the case at bar the Court took no part in the editing process. Nor is there any evidence that the accused has adequate or any information regarding the nature of the  contents of the material edited out of the ITO.

[25]        The Court has not reviewed the unedited ITO and is in no position to assess whether the information redacted from the ITO is even material to the issuance of the warrant.  Without a review of the unedited ITO the Court is in no better position than the accused to assess whether the edited material is therefore relevant to the challenge being mounted to the warrant. 

[26]        The defense objected to the Court reviewing the unedited ITO, no doubt in an attempt to prevent improper amplification prior to the Crown being charged with the burden of establishing that the edited authorization still supports the issuance of the warrant. That is a perfectly appropriate position for the accused to take, however if they chose to do so they prevent the Court from exercising its mandate to review the edited material and ensure that there has been proper disclosure to allow the accused to make meaningful representations to the Court. 

[27]        In R. v. Barzal, (1993) Can LII 867, the trial court had reviewed all of the material before the issuing justice and ordered disclosure of the edited material. While the Court of Appeal reversed his disclosure ruling, they upheld his review of the edited material as part of the Garofoli analysis. The same appears to be true in the other cases cited by both the Crown and the defense. See: R. v. Basi (2010) 2010 BCSC 26 (CanLII), B.C.J. No. 25 para 21, though it is sometimes not clear whether the court has or has not reviewed the edited material. See: R. v. Roy (2014) 2014 BCPC 70 (CanLII), B.C.J. No. 827 

[28]        The Court is as concerned as the accused that its processes are not abused by the presentation of flawed ITOs to judicial officers. Flaws in the presentation of information attack the very fabric of the prior judicial authorization process. The procedure articulated in Garofoli allows the Court to review the warrant processes after the issuance of the warrant effectively while still protecting informer privilege.  The Garofoli review also allows the accused, as much as possible, to take part in the process and make meaningful representations with respect to the analysis of the warrant processes. 

[29]        The question then remains as to what process to follow when the Court is not involved in the editing process as envisioned by the Court in Garofoli.  In my view the appropriate process to be undertaken in these cases is that once notice has been given that the accused intends to challenge either the warrant at issue or an authorization then the Court must review the entire unedited ITO and ensure that the accused is aware of the contents of the edited portions.  This might be done either through submissions or by filing the disclosure material that was provided to the accused.  If the Court is then satisfied that the accused is aware of the contents of the redacted material, the Crown must be called upon to choose whether to amplify the material before the Court, disclose further edited information, chose to withdraw the warrant, or seek to justify the warrant on the edited or amplified ITO as the case may be. 

[30]        In the case at bar the Court had no part of the editing process.  The Court also has no knowledge of whether the accused is aware of the contents of the redacted material and is not in a position to put the Crown to its election as to how they wish to proceed in the face of the notice of the accused that they intend to challenge the validity of the warrant.  Once the Court has reviewed the unredacted information to obtain and the material provided to the accused to ensure that they are aware of the contents of the redacted information then it is in a position to make further decisions regarding next procedural steps.  This would include whether the accused wished to challenge the warrant on the basis of the redacted information or whether they wished to pursue the application to disclose to the Court the handler’s material, be it the notes, reports or operational plans.  Without reviewing the redacted information there is no point in the Court reviewing the handler’s information.  The accused is at liberty to renew their application once the redacted material is reviewed and the Court is in the best position to determine if the handler’s material has any possibility of advancing the Garofoli review process.

[31]        During the course of argument regarding the disclosure of the informant information the accused also sought an order requesting permission to cross examine the affiant.  The Crown opposed such an application on the grounds that the accused was simply embarking on a fishing expedition and that he had not shown any foundation to bring into question the contents of the Information to Obtain.  I do not agree.

[32]        The accused is in the invidious position of seeking to challenge a search process while at the same time being deprived of the information that forms the very foundation of the judicial authorization process.  The need to cross examine the affiant is particularly acute when the accused has had disclosed only a heavily redacted information to obtain the search warrant.  Indeed the more substantial the redacting the greater the need for cross examination of the affiant.

[33]        Similarly the accused has pointed a number of errors and inconsistencies on the face of even the redacted information.  An example of this is the regular confusion as to whether the accused drove a Jetta or a Passat.  It is a reasonable line of inquiry as to why the affiant simply dismissed the apparent inconsistencies as insignificant.  The Crown expresses the concern that the Court must be mindful of the preservation of scarce judicial resources.  In my view that resource is best preserved not by denying an accused a reasonable line of enquiry, rather the Court will continue to ensure that any enquiries are meaningful by taking control of the cross examination processes in the event that they become unfruitful or needlessly prolix.

[34]        Following the cross examination of the affiant the accused is still at liberty to renew their application to have the handler material disclosed to the Court and use the evidence garnered in the cross examination to support their argument.  Similarly, of course, the Crown may use the information gleaned from the cross examination to continue their opposition to the disclosure of the handler material to either the Court or the accused.

[35]        This case is an example of the difficulty faced by trial courts in cases such as these.  They are asked to manage the Court processes while, at the same time, being the part of the process least informed as to the contents of the Crown brief or the accused`s defense.  This duty is made more difficult in British Columbia where the Court has traditionally not taken part in the vetting process and has no idea as to what material has been disclosed to the accused.  This will regularly lead to situations such as the case at bar when the first day of trial arrives, witnesses are present and substantial argument is necessary, little of which requires other than submissions of counsel.  These issues need to be resolved by way of pre-trial applications on proper notice. 

[36]        The defense having given notice of their application to challenge the warrant ought to place the matter before the trial Judge. The trial Judge will then review the filed material and review the unredacted Information to Obtain.  While the accused in the case at bar objected to the Court review of the unredacted Information to Obtain, in my view this is inappropriate.  The Court is well able to carry out the Garofoli review albeit that it is aware of the contents of the redacted material. 

[37]        Once the Court is satisfied that the material redacted is appropriately redacted and satisfied that the accused has been made aware of the contents of the redacted material, either by way of the disclosure already made to the accused or by way of judicial summaries, then the Court can properly decide on whether the cross examination of the affiant ought to be allowed.  Following completion of the cross examination of the affiant, if any, the court is best positioned to determine the necessity of ordering that the handler`s materials or any other sub-facial material ought to be reviewed by the Court.  Following the review of that material the court is able to determine whether additional disclosure is necessary.

[38]        If no additional disclosure is necessary then the Court ought to decide if the redacted ITO, including with reference to the judicial summaries, meets the test in Garofoli.  If not then the Crown may proceed on the basis that the search is now a warrantless search justifiable as such or that the evidence is admissible as a result of any subsequent analysis under section 24(2) of the Charter. Generally speaking none of the steps so far have required any witnesses other than perhaps affidavits outlining the disclosure process to date.  If the Court grants permission to cross examine the affiant, then that material will also be available for the Garofoli review.

[39]        Crown counsel suggested the preferred practice would be to lead all of the evidence on the case and leave this issue to be decided on the record. In that way the Court has all of the evidence both to complete the Garofoli review and the ultimate 24(2) analysis. On the other hand if the Court has decided prior to trial that the ITO is inadequate to meet the Garofoli test then they are better able to decide in advance whether they intend to proceed, disclose further information, withdraw the warrant or withdraw the case prior to substantial court time being consumed leading evidence of the search, seizure, arrest, analysis and expert evidence regarding the purpose of the possession.  Resolving the issue of the Garofoli review is, in most cases, far more likely to preserve scarce judicial resources, than leaving the issue to the conclusion of the trial. 

[40]        The accused has cross examined the affiant pursuant to the Court’s order.  The Court should now receive an unredacted copy of the Information to Obtain and information, either by affidavit or written submission, with respect to what, if any, information the accused has received regarding the edited material.  The accused is at liberty to set the matter back before me to argue that he has not had adequate disclosure of the contents of the redacted information.  The Court will then be called upon to decide if judicial summaries are necessary to provide the accused with adequate information to allow them to argue whether the Information to Obtain is sufficient to establish that reasonable and probable grounds existed and that the warrant or authorisation was then properly issued. Once the disclosure issue is resolved regarding the redacted information the accused is at liberty to make argument that the Court ought to review the sub-facial material in the possession of the handlers.

[41]        Once the issue regarding the sub-facial material is resolved then the Crown is at liberty to argue that the warrant, based on the redacted ITO together with the judicial summaries is adequate to support the warrant.  If the warrant is upheld the matter should be put down for continuation of the trial and the Crown is at liberty to lead such other evidence as they wish with respect to the trial proper.  If the warrant is found inadequate the Crown will then decide how they wish to proceed, either on the basis of a warrantless search and argue that the evidence obtained from the search is admissible following a section 24(2) analysis or admissible on some other footing, such as a warrantless search on arrest or in exigent circumstances. Those arguments are best left to the conclusion of the trial when all of the evidence is before the Court.

[42]        The matter is to be put back before me following the filing of Mr. Loewen’s reply to the Crown’s latest submissions for a further pre-trial to ensure that all counsel understand the conduct of the trial from this point forward.