Linh Pham, LL.B (hons) – Criminal Defence Attorney
Drug charges often carry custodial sentences – if you have been charged with a PPT offence or drug importation offence and require an experienced criminal defence attorney, contact Linh Pham for a free consultation (306)-502-5987.
Disclosure of ALL materials in a drug case against you may be relevant and advantageous to mounting your defence for countless reasons including potential Charter Applications, however the question today is – what are source handler notes and source debriefing reports in drug investigations? And why do you care if they are disclosed.
“Source Handler Notes” (SHN) or “Source Debriefing Notes” (SDR) are documents made by source handlers who are recording their interactions with their designated sources. Source Handlers are essentially Police Officers, who handle Informants. SDR and SHR are only disclosable under what is known as a “McKay Order”.
Simply classifying materials as “handler notes” does not necessarily afford them the protection of informer privilege. The burden is upon the accused to demonstrate “that there is a reasonable likelihood that the requested materials will assist the court in the determination of the application”.
Oftentimes when you are charged with serious drug offences, the Federal Crown may oppose your request for source handlers’ notes and the source debriefing reports. Is this fair? Is this proper?
Whether SHNs and SDRs are subject to disclosure depends on whether these requested documents are properly characterized as part of the investigative file or fruits of the investigation and that their disclosure should be subject to the defence showing them to be likely relevant. This burden can be met, if the Defence establishes that the affiant in preparing his “Information to Obtain search warrant” (ITO), considered documents including the SDRs and SHNs. As such – SHNs and SDRs are first party disclosure, unless those reports concern only general information unrelated to a particular accused and investigation, or if they were not considered by the affiant in preparing his ITO.
In R. v. McKay, 2016 BCCA 391, the BC Court of Appeal concluded that if the affiant preparing the ITO did not rely on for source handlers’ notes and the source debriefing reports in preparing the ITO, then the same would not be subject to disclosure.
It is important to request disclosure of all documents relied upon by the affiant who prepared the ITO, as such relevant information would be necessary in considering whether it is fruitful to mount a Garofoli Application to challenge the validity of an ITO and search warrant.
Remember – If you are charged with drug related offences including possession for the purpose of trafficking, importation, or other related offences – contact an experienced drug defence attorney like Linh Pham (306) 502-5987.