



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Cook, 2014 ONCA 170

DATE: 20140304

DOCKET: M43077 (C52643)

Doherty, Pepall and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Sheldon Cook

Appellant

Matthew Gourlay, for the appellant

John North and Ruth McGuirl, for the respondent

Frank Addario, appearing as
amicus curiae

Heard: November 28, 2013

On an application under s. 683(1) of the
Criminal
    Code
, seeking production of certain documentation in connection with an
    appeal pending from a conviction entered on June 23, 2010 by Justice S. Casey
    Hill of the Superior Court of Justice, sitting without a jury.

Benotto J.A.:

Introduction

[1]

This is an application for disclosure of the redacted portions of information
    produced to the appellant by the Crown.

[2]

The applicant was convicted of unlawful attempt to possess
    cocaine for the purpose of trafficking, breach of trust by an official,
    possession of stolen property and simple possession of marijuana. He appealed
    to this court.  While the appeal was pending, Crown counsel provided certain
    information to counsel for the appellant that had come into the possession of
    the police post-conviction.  That development led to a process that has unfortunately
    delayed the hearing of the appeal.  This motion is the latest step in that
    process.

[3]

The appellant brings this application for disclosure of the identity of
    a person who provided information to the Peel Regional Police after his
    conviction. The Crown alleges that the identity of the person is protected by
    privilege either as a confidential informant or by way of public interest
    privilege.

[4]

The applicant argues that the only issue for the court to decide is that
    of privilege.  If privilege does not exist, the information should be
    produced.  The respondent, on the other hand, argues that if privilege does not
    apply, the application remains subject to the two-part test for production
    articulated in
R. v. Trotta
(2004), 23 C.R. (6th) 261 (Ont. C.A.).

Facts

[5]

The applicant was a Peel Regional Police officer who unwittingly
    intercepted a RCMP-controlled delivery of imitation cocaine.  The fake cocaine
    was packaged in the shape of bricks, each weighing one kilogram.  The applicant
    had 15 bricks in the trunk of his police cruiser and took them home.  Tracking
    devices installed in the bricks led the RCMP to locate them inside a Sea-Doo in
    the applicants garage.  They also found 443 grams of marijuana and some stolen
    property.

[6]

The applicants defence was that he did not know the bricks were cocaine
    and that he took them home on the orders of his supervising officers Detective
    Rykhoff and Constable Williams.  In short, he took the position that he was a
    stooge for these bosses.  The information that is the subject of this
    application relates to allegations of misconduct against these supervising
    officers.

[7]

The applicants trial lasted for 33 days. Detective Rykhoff and
    Constable Williams testified, as did the applicant. The trial judges decision
    convicting the applicant is 141 pages long. As his findings with respect to the
    applicant, Det. Rykhoff and Const. Williams are of particular relevance to this
    application, it is necessary to summarize the trial judges findings in some
    detail.  He made the following findings of fact:

·

He rejected the applicants evidence that he did not believe the bricks
    contained an illicit narcotic.

·

He rejected the applicants evidence that he did not know how the
    box containing the 15 packages of fake cocaine got into the trunk of his police
    vehicle and that he was surprised to find them there.

·

He found that the applicant took the packages home on his own,
    believing that they contained cocaine or some other narcotic that would have
    significant value.

·

He found that the applicants account of how the 15 packages
    ended up in the closed hatch of the Sea-Doo was not credible.

·

He rejected the submission that Det. Rykhoff and Const. Williams
    colluded to tailor their evidence to frame the applicant. He added that there
    was next to no prior relationship between the two and  no credible basis for
    believing that [Const.] Williams engaged in any criminality or was co-opted
    into a cover-up of some type.

·

He made findings of credibility against Det. Rykhoff and instructed
    himself to be very suspect of [Det.] Rykhoffs evidence in its entirety.  The
    trial judges findings included the fact that:

·

He was an unimpressive witness in many respects;

·

He was caught in what can only be described as a number of
    lies;

·

There were instances of the witness seriously misleading the
    court; and

·

He was highly evasive.

·

He also made findings of credibility against Const. Williams,
    describing him as:

·

An uncomfortable and at times evasive witness;

·

A witness who:

·

Distinguished himself in misleading the court;

·

Would change answers on the same subject, apparently when he
    could not recall his prior response;

·

Misled the RCMP, misled the prosecutor and gave answers that
    were equally convoluted and not creditworthy; and

·

Would shrug off discrepancies.

·

He found that, notwithstanding the caution needed to approach
    the testimony of [Det.] Rykhoff and [Const.] Williams, he was satisfied beyond
    a reasonable doubt that the applicant took the 15 bricks believing they contained
    cocaine.

[8]

The applicant was sentenced on October 15, 2010. Ten months later, an
    anonymous email was received by the Peel Regional Police.  The email alleged
    misconduct by Det. Rykhoff and Const. Williams dating back decades.  The
    Internal Affairs Bureau investigated and determined the identity of the
    author.  The existence of the investigation was disclosed to the applicants
    counsel, who requested disclosure of the authors identity.

[9]

The Crown provided a redacted summary of information from the investigation
    but asserted confidential informer privilege over information disclosing the
    identity of the author.

[10]

Mr.
    Addario was appointed
amicus
to assist the court. Counsel agreed that Mr.
    Addario would interview the author, and he did so.  A redacted version of his
    contact with the author was provided to the applicant, and Mr. Addario is the
    only person to have spoken to the author.  It is clear from the record that the
    author has had extensive prior involvement with the police, has mental health
    issues and wants his or her identity protected.

The Positions of the Parties

[11]

The
    applicant submits that the author may have information that would support an
    application to adduce fresh evidence on appeal.  In particular, the author may
    have information about a prior relationship between Det. Rykhoff and Const. Williams.
    This information, it is argued, would have undermined the finding of the trial
    judge that there was next to no prior relationship between the two officers.  The
    applicant argues that the authors identity is not privileged and that the
    information should therefore be disclosed.  He submits that there is no need to
    address the
Trotta
test for production, as privilege was the only
    reason that Crown did not produce the information sought.

[12]

The
    respondent submits that the identity of the author is protected by privilege. 
    As a result, the applicant must bring himself into the innocence at stake exception
    which, in light of the trial judges findings, is not engaged.  In any event,
    the respondent argues that the information is irrelevant, unreliable and could
    not have affected the verdict.  It argues that the court is required to apply
    the
Trotta
test for production and that the test is not satisfied here.

[13]

The
amicus
provided an overview of the law without proposing a conclusion.

Issues

[14]

There
    are two issues to be considered:

1.

Is the identity
    of the author of the email protected by privilege, either as a confidential
    informant or by way of public interest?

2.

Does the
Trotta
test apply to the request for production?

Analysis

Privilege

[15]

In
    my view, the identity of the author is not protected by either informer or
    public interest privilege.  There is therefore no need to determine whether the
    innocence at stake exception is engaged.

[16]

I
    turn first to the issue of informer privilege. It was submitted that the law is
    not clear on this point. The leading cases analyze informer privilege on the
    basis that some promise of confidentiality express or implied is necessary. 
    However, in
R. v. Barros
, 2011 SCC 51, [2011] 3 S.C.R. 368, Binnie J.
    seems to have left open the question when he stated, at para. 32: [i]t might
    be argued that in a situation of serious potential danger, the informer
    privilege (or other public interest privilege) might apply even in the absence
    of the contract-type elements of offer and acceptance.

[17]

In
    my view, this matter was settled in
R. v. Named Person B
, 2013 SCC 9,
    [2013] 1 S.C.R. 405, at para. 18, when Abella J. confirmed that there must be
    some conduct on the part of the police from which a promise of confidentiality
    could be inferred, either expressly or implicitly:

The legal question is whether, objectively, an implicit promise
    of confidentiality can be inferred from the circumstances.  In other words,
    would the police conduct have led a person in the shoes of the potential
    informer to believe, on reasonable grounds, that his or her identity would be
    protected?

[18]

In
    this case there was no conduct on the part of the police, express or implied,
    that could have led the author to believe that his or her identity would be
    protected.  The police merely received an unsolicited anonymous email.  The
    test for informer privilege is not satisfied on the facts of this case. (This
    is unlike a crime stoppers communication which is founded on a promise of
    anonymity.)

[19]

I
    similarly conclude that public interest privilege does not apply.  Public
    interest privilege involves a claim by a government or an official that certain
    information should be kept secret.  Typical situations involve the need to keep
    police investigative techniques confidential or the protection and safety of
    individuals.  The Crown has the burden of establishing the need to keep the
    identity of the author secret.  The Crown attempted to satisfy this burden by
    alleging that the authors mental health issues, fear of police and fear of
    retribution engage public interest privilege.  However, there is no objective evidence
    underlying the authors fears.  On the record before us, the Crowns burden has
    not been met.

[20]

The
    identity of the author of the email is not covered by privilege, either as a
    confidential informant or by way of public interest.


The
Trotta
Test

[21]

When
    production is sought in support of an anticipated fresh evidence application,
Trotta
provides a two-step framework:

1.

The applicant
    must first demonstrate a connection between the request for production and the
    proposed fresh evidence application.  It must be shown that there is a
    reasonable possibility that production will assist the applicant in developing
    or obtaining information that will be admissible as fresh evidence.

2.

Next,
    the applicant must demonstrate that there is some reasonable possibility that
    the evidence to which the production request is linked may be received as fresh
    evidence on appeal.

[22]

The
    applicant submits that the only issue for the court to determine is that of
    privilege and that there is no need to apply the
Trotta
test at all.
    He submits that, but for the assertion of privilege, the Crown would have
    produced the information sought and it should therefore be produced.  However,
    he argues that if this court decides that the
Trotta
test applies, the
    test is met and production should be ordered.

[23]

In
    contrast, the Crown argues that this court is required to apply the procedure
    set out in
Trotta
.  It takes the position that apart from privilege,
    the identity of the author is irrelevant and that any investigation by the
    applicant in connection with this person would not support a fresh evidence
    application and would amount to a complicated fishing expedition.  It therefore
    submits that the applicant cannot meet the
Trotta
test and that
    production should not be ordered.

[24]

In
    my view, it is premature to apply the
Trotta
test.  However, in light
    of the submissions, I will set out the
Trotta
analysis so that the parties
    will have a clear understanding of its parameters as the matter moves forward.

[25]

Were
    the
Trotta
test to apply, the application at this stage would not succeed. 
    The second branch of the test would require the court to find that the author
    of the email would likely provide information that would lead to a reasonable
    possibility of admission as fresh evidence on appeal. The principles governing
    the admissibility of fresh evidence on appeal are outlined in
R. v.

Palmer
,
    [1980] 1 S.C.R. 759.  The
Palmer
test requires the applicant to
    satisfy four criteria: (i) the evidence could not have been adduced at trial;
    (ii) the evidence must be relevant in that it bears on a decisive or
    potentially decisive issue; (iii) the evidence must be reasonably capable of belief;
    and (iv) the evidence must be such that, if believed, it may have affected the
    result at trial.

[26]

On
    the information before the court, the
Palmer
criteria would not be
    satisfied. First, the quality of the authors information renders its
    credibility highly suspect.  Second, the findings of the trial judge are such
    that even if believed, the authors information could not reasonably have been
    expected to affect the result.

[27]

The
    author claimed to have information about misconduct by Det. Rykhoff and Const.
    Williams.  However, this information is decades old and unsubstantiated.  An
    Internal Affairs investigation uncovered no documented contact between the
    author and these officers. The author makes no suggestion that there was any
    prior relationship between Det. Rykhoff and Const. Williams, and the police
    provided an affidavit indicating that Det. Rykhoff and Const. Williams did not
    work together or in departments close to one another during the time period to
    which the authors comments refer.  They did work at the same division from
    1990-1992, but on different shifts and in different departments. The same
    Internal Affairs investigation revealed a history of frivolous claims against the
    police by the author.

The author has mental health issues, a history
    of addiction to drugs and alcohol, a history of violence and an animus against
    the police.  These factors impact the authors credibility.

[28]

The
    second issue is whether the author has any evidence that could have affected
    the result at trial. The applicant submits that the proposed evidence could
    have affected the result because the trial judge rejected the applicants
    defence in part because he was not persuaded that Det. Rykhoff and Const.
    Williams had a significant prior relationship or that Const. Williams had
    engaged in any criminality. The authors information does not suggest that
    Const. Williams and Det. Rykhoff ever engaged in misconduct together.  Given
    the basis on which the trial judge drew his conclusions, his findings could not
    reasonably have been affected by the authors information.  The trial judge
    rejected the applicants explanation for having taken the fake cocaine home: he
    found the testimony implausible, inconsistent and full of transparent
    falsehoods.  The authors evidence would not have any bearing on this
    assessment.

[29]

More
    importantly, the trial judge made credibility findings
against
Det.
    Rykhoff and Const. Williams.  He stated that Det. Rykhoff was probably involved
    in taking some of the fake cocaine.  He was suspect of Det. Rykhoffs testimony
    in its entirety.  He made equally negative findings against Const. Williams. 
    The trial judge concluded that the testimony of both officers was highly
    suspect. Even if the author has information against these two officers, it
    could only reinforce, not change, the findings of the trial judge.

[30]

This
    would be the
Trotta
analysis as applied to the information currently
    available to the appellant and placed before this court.  It would, however, be
    premature to subject that information to the
Trotta
analysis. 
    Although framed as an application for production under s. 683, the real issue
    before the court was whether the author of the email was a confidential
    source.  The application was framed and argued as one that was preliminary to
    an application for production.  In my view, (and without intending any
    criticism of counsel who were in a rather unique situation,) the motion is more
    properly described as a motion for directions with respect to the scope of
    Crown disclosure.

[31]

The
    distinction between a motion for production and a motion for directions in
    respect of Crown disclosure may be difficult to draw.  It is probably
    impossible to draw a bright line between the two.  I think it is best to
    approach each case having regard to exactly what is sought by the appellant and
    its potential impact on the putative fresh evidence application.  Ultimately,
    the court is concerned both with allowing the appellant an opportunity to
    pursue realistic fresh evidence possibilities and with the hearing of appeals
    in a timely fashion.  The characterization of any particular motion brought in
    the context of a proposed fresh evidence application must, to some extent, be a
    reflection of how those twin purposes can best be served.   Here, the issue was
    a narrow one:  was the authors identity confidential.

[32]

The Crown, quite rightly, disclosed the information received from
    the author and the results of the police investigation in redacted form.  In
    doing so the Crown was in no way conceding the relevance of any of the material
    to the appeal or its obligation to produce any related material should the
    appellant ultimately bring a production motion. The Crown, again quite rightly,
    redacted the information that could identify the informant pending a judicial
    determination of the privilege issue.  Clearly, the Crown had determined that
    having regard to its broad disclosure obligations, the substance of the
    information it had received should be disclosed.  The Crown did not argue
Trotta
on the application except in response to a specific inquiry by the court.  The
    Crown objected to disclosure of the identity of the author solely on the basis
    of privilege.

[33]

The
    Crowns claim for privilege with respect to the redacted information cannot
    stand.  Since this was the basis for redacting the information produced, the
    redacted portions of the documents should now be provided, subject to the 5
    areas relating to privacy issues that were identified during an in camera
    portion of the application.

[34]

In
    light of the delays that have occurred thus far, Justice Doherty will assume a
    case management role to establish timelines and to determine any additional
    disclosure issues so that the ongoing delay is minimized.

Conclusion

[35]

The
    identity of the author of the emails is not covered by privilege. The
Trotta
analysis is premature. The Crown is to provide unredacted copies of the
    documents already produced, subject to the privacy issues discussed in camera. 
    Justice Doherty will case manage the matter with a view to a timely date for a
    hearing on the merits of the appeal.

[36]

I
    would therefore allow the application.

M.L. Benotto J.A.

I agree D. Doherty
    J.A.

I agree S.E. Pepall
    J.A.

Released: March 4, 2014


