The B.C. Court of Appeal has once again made the work of B.C. drug cops a little easier.
That's because for the second time since August, B.C.'s highest court has overruled a trial judge's decision on the side of the accused in a case involving confidential police informants.
Today, a three-member B.C. Court of Appeal panel unanimously overturned Justice Brian D. MacKenzie's 2015 ruling that led to a stay of proceedings against Cameron Tyler Lewis McKay.
Writing for the panel, B.C. Court of Appeal Justice Peter Willcock concluded that MacKenzie had "erred in concluding source handler notes and source debrief reports not read and relied upon by the officer who swore the information to obtain the search warrant were relevant to the application".
"The trial judge also erred by taking an overly narrow view of the scope of informer privilege," the B.C. Court of Appeal judgement states. "Once the Crown establishes that a document was created to record information that could tend to reveal the informer’s identity and the document is not disclosed or relied upon to obtain an order, there is no prima facie right to obtain an edited version of the document."
McKay was charged with cocaine trafficking after a Victoria police officer had obtained a search warrant based on evidence from two confidential informants.
McKay's lawyer, Bradley Hickford, went to court in 2015 seeking more details. In particular, Hickford applied for the police source-handler notes, source debriefing reports, notes from the constable in anticipation of obtaining the warrant, and all notes and reports by the constable after his discussions with the informants' handlers.
After the Crown objected to releasing this information, a stay of proceedings was entered against McKay.
In coming down with a ruling last year on the side of MacKay in B.C. Supreme Court, Justice MacKenzie cited the landmark 1991 Supreme Court of Canada decision, R. v Stinchcombe. It set out the terms under which the Crown must disclose investigative materials to the defence.
"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," MacKenzie wrote. "The decision in Barzal governs the extent of additional disclosure which must be made when an accused person challenges a warrant, and does not curtail or suspend Stinchcombe."
B.C.'s highest court rejected Mackenzie's conclusions.
It comes just over a month after the B.C. Court of Appeal set aside acquittals of a Vernon man, Christopher Brant Loewen, in another drug case. Charges against Loewen had earlier collapsed in B.C. Supreme Court, prompting the Crown appeal that got the case back on track.
The trial judge in R. v Loewen, Mayland McKimm, ruled that a search warrant was inadmissable because the "vast majority of the information provided...was nothing more than bald assertions with no way in which the authorizing justice could assess their reliability". Police did not disclose how much informants were paid for providing information.
In overturning that decision, a B.C. Court of Appeal panel unanimously concluded that McKimm had made a mistake.
Because both of the recent B.C. Court of Appeal decisions involving search warrants were unanimous, it lessens the likelihood that they can be appealed before the Supreme Court of Canada.
That's because if there's a split decision in a criminal case in the B.C. Court of Appeal, there is an automatic right of appeal. That's not so when all three members of a judicial panel agree, as was the situation in the McKay and Loewen cases.