Cameron Tyler Lewis McKay v. Her Majesty the Queen

(British Columbia) (Criminal) (By Leave)


Criminal law - Evidence, Admissibility, Disclosure.


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Criminal law – Evidence – Admissibility – Disclosure – Applicant’s application for disclosure order allowed in part by trial judge, edited to protect informer privilege, and application for a judicial stay of proceedings granted – Appeal allowed by Court of Appeal – Whether the Court of Appeal erred – Whether the Court of Appeal erred in concluding that Source Handler Notes and Source Debriefing Reports (relating to intelligence received from confidential informant and relied upon in an application for judicial authorization to search, which ultimately was granted and used to procure evidence later sought to be tendered against an accused) only became “first party disclosure” where the affiant on the given application for judicial authorization actually physically viewed the Source Handler Notes and Source Debriefing Reports in issue, and as a corollary that in all other circumstances those materials were instead third party records not subject to disclosure unless the accused could establish “likely relevance”.

The applicant was charged with possession of cocaine for the purpose of trafficking. The charge arose from the seizure from his townhouse of approximately one kilogram of cocaine and drug trafficking paraphernalia during a search conducted by officers acting under a search warrant issued by a judicial justice, pursuant to the Controlled Drugs and Substances Act, S.C. 1996, c. 19. Months before trial, the applicant’s counsel informed the judge the only issue at trial would be the admissibility of the seized evidence, in particular whether it had been obtained in breach of s. 8 and should be excluded pursuant to s. 24(2) of the Charter of Rights and Freedoms. The applicant intended to challenge the sufficiency of the grounds to support the warrant and would seek to cross-examine the officer who swore the information to obtain the search warrant. Several weeks before the anticipated trial, the applicant applied for disclosure of materials relating to information provided to the police by informers. The trial judge granted the applicant’s application in part. The trial judge required the Crown to disclose documents containing the intelligence from the informers, edited, if necessary, to protect informer privilege. The Crown declined to comply with the disclosure order and the judge granted the applicant’s application for a judicial stay of proceedings. The Crown appealed the disclosure order and the consequential stay. The appeal was allowed. The disclosure order and resultant judicial stay of proceedings were set aside, and a new trial was ordered by the Court of Appeal.