Vancouver Sun

Prosecutor­s appeal police informer ruling

Charges against accused drug dealer dropped due to lack of disclosure

- KIM BOLAN blog:vancouvers­­op kbolan

B.C. and federal prosecutor­s are appealing a ruling to stay the charges against an accused cocaine dealer over a failure to disclose details of intelligen­ce provided by a police informer.

Cameron McKay was charged in 2013 with possession for the purpose of traffickin­g after Victoria police seized a kilogram of cocaine and drug parapherna­lia from his Esquimalt home.

At his trial last year, McKay challenged whether police had sufficient grounds to get a search warrant for his residence.

His lawyer “sought disclosure of intelligen­ce provided by two police informers in the form of source handler notes and source debriefing reports,” B.C. Court of Appeal Justice Sunni Stromberg-Stein said in her ruling.

“The Crown disclosed a single source debriefing report, but asserted that the remaining source debriefing reports and source handler notes were not relevant and were protected by informer privilege.”

The trial judge ordered more disclosure, but the federal prosecutor refused, leading to the charge against McKay being dropped.

The federal Crown filed an appeal, which is expected to be heard in June.

“The issue raised in the appeal is whether, and in what circumstan­ces, an accused person is entitled to access raw intelligen­ce provided by police informers,” StrombergS­tein said.

The B.C. attorney general went to court to get intervener status, since the issue of informer privilege has arisen in several major gang prosecutio­ns, including the Surrey Six murder case.

In a ruling released Monday, Stromberg-Stein granted B.C. prosecutor­s status in the appeal.

“The attorney general says that it has prosecuted a number of mega-cases involving murders and murder conspiraci­es arising out of rivalries between criminal gangs. A significan­t issue in these cases has been the disclosure of informatio­n relating to confidenti­al informers,” Stromberg-Stein said.

“The attorney general’s argument will go further than that of the federal Crown. It will argue that all informatio­n provided by a confidenti­al informer, in whatever form, is presumptiv­ely privileged and must not be disclosed absent a finding of innocence at stake. It will argue that attempting to edit a privileged document involves an incalculab­le risk of identifyin­g the informer.”

In B.C ., federal prosecutor­s oversee all drug cases, while the provincial Crown prosecutes murder cases and other Criminal Code offences.

Stromberg-Stein said the B.C. government’s involvemen­t in the appeal “will not be unfair or create an appearance of unfairness to the accused.”

“The attorney general has a direct interest in the appeal and can provide a useful and different perspectiv­e on the issues before the court,” she said.

The issue raised in the appeal is whether, and in what circumstan­ces, an accused person is entitled to access raw intelligen­ce provided by police informers.

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