COURT OF APPEAL FOR ONTARIO

DATE: 20000810

DOCKET: C32578

MORDEN AUSTIN AND GOUDGE JJ.A.

BETWEEN: )

HER MAJESTY THE QUEEN ) Paul Slansky and

) Andras Schreck

Respondent ) for all appellants

• and - ) Shaun Nakatsuru

) for the interveners

G.B., P.S., C.B., D.M., L.F., and A.M. )

) Douglas Gosbee

) for the appellant G.B.

) John L. Hill

Appellants ) for the appellant D.M.

) Randall Barrs

) for the intervener Churchill

) D.D. Graham Reynolds, Q.C.

) Antoinette Issa

) for the respondent

) Heard: May 29, 2000

On appeal from an order of Justice D. Humphrey dated July 20, 1999.

MORDEN J.A.:

[1] Before setting forth the issues and the evidence relating to this appeal, which involves the nature and scope of the police informer privilege and circumstances in which it may be lost, it will be convenient to begin with a bare outline of the procedural history of this proceeding.

[2] The appellants have been charged with conspiracy to traffic in narcotics contrary to s.4 (1) of the Narcotic Control Act and s.465 (1) (c) of the Criminal Code, and with unlawfully participating in, or substantially contributing to, the activities of a criminal organization, contrary to s.467.1(1) of the Criminal Code. In the course of the preliminary inquiry they sought a ruling from the presiding judge, Bassel J., that the name of a person, described as “Informant #1” in an affidavit used in an application for an authorization to intercept private communications, should be disclosed.

[3] The Crown took the position that Informant #1 was a police informer and, for that reason, his name should not be disclosed. The appellants submitted that, on the evidence before the judge, he was an agent for the police whose name was properly disclosable. (The affidavit states that, notwithstanding the actual sex of an informant (four informants were referred to in the affidavit), “each informant will be referred to by the masculine pronoun ‘he’.” This explains why I refer to Informant #1 as “he”.)

[4] Bassel J. agreed with the appellants’ submissions and ruled that the name should be disclosed and that Informant #1 should be produced for examination as a witness.

[5] Following this, the Crown made an application under s.37 of the Canada Evidence Act, R.S.C. 1985, c.C.-5 in the Superior Court of Justice “for an order sustaining the objections by the Crown made at the Preliminary Hearing of the Respondents before the Honourable Judge Bassel on April 14, 1999 concerning questions which may reveal the identity of the police informant.” Humphrey J. heard the application. He granted the order sought. He found Informant #1 to be a police informer and nothing more.

[6] The appellants appeal to this court from this order under s.37 (5) of the Canada Evidence Act.

[7] The interveners were charged with the same offence of conspiracy to traffic in narcotics as the appellants. At the beginning of the preliminary inquiry before Bassel J., they waived the preliminary inquiry and consented to their committal for trial. They were granted intervener standing in this appeal.

[8] The appellants raised two issues which, in both their factum and oral submissions, they presented in this order:

(1) Even if Informant #1 was, on all of the material, properly found by the court to be an informer only, the Crown was guilty of an abuse of process in changing its position between that taken in the affidavit supporting the application for the authorization and that taken during the preliminary inquiry. In the former, the appellants submit, the Crown categorized Informant #1 as an agent, while in the later it was argued that he was an informer only. The proper remedy for this abuse of process, in the appellants’ submission, is to hold the Crown to its first position that Informant #1 is an agent.

(2) On the evidence, Informant #1 should be categorized as an agent.

[9] As a matter of logical sequence, I think that the second issue raised should be dealt with first and I turn to it now.

Is Informant #1 an Informer or an Agent?

[10] In general terms, the distinction between an informer and an agent is that an informer merely furnishes information to the police and an agent acts on the direction of the police and goes “into the field” to participate in the illegal transaction in some way. The identity of an informer is protected by a strong privilege and, accordingly, is not disclosable, subject to the innocence at stake exception. The identity of an agent is disclosable.

[11] What gives rise to the issue in the present case are certain parts of the affidavit of Detective Sergeant John S. Cavanaugh, a member of the Ontario Provincial Police, Technical Support Section, which was filed in support of an application under Part V1 of the Criminal Code for an authorization to intercept private communications and a related assistance order. The authorization was granted, followed by five others. The charges against the appellants are based, in part, on the intercepted communications obtained under the authorizations. During the preliminary inquiry, the appellants were allowed to cross-examine Detective Cavanaugh (as he was called in the course of the evidence) on wiretap issues.

[12] The first affidavit of Detective Cavanaugh which, for the purpose of the preliminary inquiry, contained portions edited out by Crown counsel to avoid disclosing the identity of Informant #1, contained the following passages in paragraph 3a. 5:

a) On 26 February 1996, Detective Elliott advised me that Informant #1 has been providing him confidential and reliable information since June, 1995. Informant #1 [edited out portion] has provided information which has led, either in whole or in part, to the arrests of persons in possession of hashish oil [edited out portion]. Informant #1 did not, initially, acquire information at the direction of the police and was not asked to provide any introductions, to avoid being classed as an Agent and forced to testify in court.

b) [4 Lines edited out.]

Informant #1 is now, clearly, a police Agent.

c) Informant #1 initially provided information to Detective Elliott for monetary gain and for revenge. [Edited out portion.]

d) To our knowledge, Informant #1 is not actively involved in criminal activity [edited out portion]. He has not provided false or misleading information that we are aware of.

e) Informant #1 has [edited out portion]. He has no additional Criminal Record.

[13] This part of the affidavit was under the name of a primary target, William Montgomery Talbot.

[14] Further on in the affidavit the following appears:

3b) Grant Douglas Clark [the name of another primary target]

3b.8 On 10 April 1996, Detective Elliott advised me that: on 28 March 1996 Informant #1 [edited out portion] acted without the knowledge of Detective Elliott [edited out portion] paid for by police with Informant #1 being allowed to act as a Police Agent as it was very much in the public interest [edited out portion].

[15] During the course of the examination of Detective Cavanaugh he said that, in his view, Informant #1 was an informer, not an agent, but that the Department of Justice lawyer involved in the application was of the view that he should be referred to as an agent in the interest of full disclosure and that the court, based on all the evidence, could decide on the correct classification.

[16] The cross-examination showed that paragraphs 3a. 5 and 3b. 8 refer to the same facts with respect to certain unauthorized steps taken by Informant #1. The four lines edited out of para. 3a. 5 (b) explain what this action was.

[17] The following are exchanges during the cross-examination of Detective Cavanaugh:

Q. Can you describe the facts that are in the edited portion of paragraph B [paragraph 3a. 5b, set out in paragraph 12 above] in some way without revealing the identity of this informant/agent?

A. Certain information came to the attention of the informant that there was contraband available for sale. He provided information to his handler concerning the contraband, and the agent - - or, excuse me, his handler said, “Thank you very much.” Shortly thereafter, he showed up with the contraband which he had bought and paid for himself, and was very, very proud of himself for doing so.

We, unfortunately, were stuck with the contraband. We, of course, couldn’t proceed with it because we didn’t want to disclose what was going on, and he was severely chastised for his activities. We had no idea that he was going to do what he did, and spend his own money to do it, too, which is what I found kind of interesting.

Q. So, what you are saying is that he went into the field, so to speak?

A. And to make matters worse, it was completely unrelated to anybody in any of those affidavits.

Q. And it says, “Paid for by the police with Informant Number One being allowed to act as a police agent, as it was very much in the public interest…” blank. “Being allowed to act as a police agent.” “Allowed” carries with it some aspect of permission. So, was the police giving him permission to act as a police agent in some fashion, is that what that says? Is that what that means?

A. The transaction was under way, and, basically, it couldn’t be stopped is what it boils down to.

Q. So, because he was already involved in it, he was allowed to or permitted to continue his involvement, as he had already had initiated it?

A. Basically, yes.

Q. And, therefore, although it wasn’t something you are saying the police wanted him to be doing, it was something that he was allowed to continue to do, that there was an aspect of police permission or police approval, albeit reluctantly, for him to continue in that activity at that stage?

A. Basically, yes.

[18] If there is any doubt about whether or not the transaction involving the contraband had anything to do with the investigation of the appellants, or the targets related to that investigation, the evidence given in the following exchange, on the next day, is pertinent:

Q. I took your evidence yesterday to be that whatever the actions of the agent were, it was in no way whatsoever in any way, shape or form related to any of the targets of the investigation, any of the associates of Satan’s Choice or any of the members of Satan’s Choice; was that your evidence yesterday?

A. That was my understanding, yes.

Q. Is your understanding different today?

A. No.

[19] I turn now to the decision of Bassel J. He held that although Informant #1 was not acting under the direction of the police, because his activities occurred during the time in which he had some contact with the police, he became an agent. He said:

I believe that in this case, on what I have heard, it is my view that this person in Paragraph 3.5 may have originally been an Informant, and, therefore, eligible for that protection. However, I find that by reason of his or her activities of going out into the field while in some contact with the police, and albeit, doing an activity which was not requested by the police, but reporting it back to the police and then continuing in some relation with the police, that this person has changed into an Agent and has lost the protective cover.

[20] He also held that Informant #1’s activities need not be in relation to the investigation against the appellants to make him an agent as against the appellants. On this he said:

I do not agree with the submission that the purported field activity must be part of the case before the Court in order to have him classified as being out on the field and, therefore, an Agent. As I said, I believe that it is significant as to what the police do or do not do with the person after the foray. Having said this, however, the question of the relevance of questioning in that area could be an issue.

[21] His reading of various parts of the affidavit indicated to him that Informant #1 was portrayed, to the authorizing judge on the Criminal Code, Part V1 application, as a police agent. In relation to this, he said:

There is another aspect here. It is also troubling to consider that here the Prosecution is, in effect, trying to ride two horses. It calls this person “now clearly a police agent” to the Authorizing Justice, and then in the Preliminary Inquiry here, a U-turn is done, and what is being said is that the person is not what we said but was really an Informant. I do not think the Crown can or should have it both ways.

[22] Following the hearing before him under s.37 of the Evidence Act Humphrey J. reviewed the history of the matter. In the course of his reasons he said:

Informant number 1 apparently had information that a third party, not a member of the motorcycle gang, not a person who was the target, a target in the initial application for the wiretap, had stolen goods for sale. He communicated this information to the police who indicated that they were interested. Without the knowledge and consent of the police, and contrary to their instructions to him, informant number 1, on his own initiative, with his own money, bought from this third party some contraband and then reported these activities to the police who chastised him for his unauthorized activity but reimbursed him for what he had paid for the stolen goods.

[23] Humphrey J. then said that the fact of the purchase of the contraband was completely irrelevant to the application to the judge for an authorization to wiretap. “It has nothing whatsoever to do with any of the targets of the requested wiretap. It had nothing to do with dealing in drugs in any way, shape or form and, in my view, was completely irrelevant and should not have formed part of the affidavit”.

[24] Further on he said:

Bearing in mind that informant number 1 was giving material information about drug dealing by one or more of the respondents, and perhaps in the spirit of making full disclosure, Detective Cavanaugh felt he should have told this Assistant Crown Attorney about this other, what I characterize as, completely unrelated matter.

[25] Later in these reasons he said:

The learned Provincial Court Judge conducting the preliminary conducting ruled that informant number 1 had become an agent because of his description as such by Detective Cavanaugh in an affidavit and thereby lost his immunity as an informant. I find that informant number 1, on the facts of this case, had not become an agent of the police by making an unauthorized purchase of stolen goods from a third party entirely unrelated to any of the respondents.

[26] His conclusion on the question of agent or informer was as follows:

It was decided, quite properly, that informant number 1 would not go “into the field” to engage in any activity that could possibly remove him from the status of informant and put him in the status of either an agent of the police or an agent provocateur, and instructed informant number 1 accordingly. Therefore, I find that his unauthorized conduct did not constitute him as an agent of the police. If I am wrong about that, his agency was not related in any way to the alleged drug dealings by the respondents. In my opinion, no information from his alleged agency should have formed any part of the evidence presented on the wiretap application with regard to the alleged drug dealings and narcotics by the respondents and was entirely irrelevant and, therefore, does not change his status as informant with regard to these respondents.

[27] He then dealt with the abuse of process submission. On this he said:

Argument has been presented that this is an abuse of process, that the Crown has taken the position that he was an agent as he was characterized in the affidavit by Detective Cavanaugh, and Crown counsel at the preliminary hearing took the position that he was not an agent but in fact was an informant only with regard to these respondents and their activities in dealing in drugs.

First of all, the affidavit is the affidavit of Detective Cavanaugh, and absent any evidence by Detective Cavanaugh, his opinion that the accused had become an agent does not constitute the position of the Crown. There is simply the position of Detective Cavanaugh and is in no way binding on the Crown, specifically the Crown Attorney who appeared in court at the preliminary hearing.

[28] I shall deal with the abuse of process issue in the next part of these reasons. On the informant or agent issue, I agree with Humphrey J.’s conclusion. Bassel J. held that it did not matter that Informant #1’s activity in the field was not related to the investigation of the offences before the court. This activity made him a police agent, apparently for all purposes, including that of the case before him.

[29] For the purpose of these reasons, I am prepared to regard Informant #1 as a police agent respecting the purchase of the contraband – on the basis of the police ratification, albeit reluctant, of this transaction. I do not, however, see any principled or practical basis for expanding the scope of his agency to embrace the unrelated area of the investigation of the appellants’ activities. In other words, Informant #1 did not become a police agent in rem, i.e. in relation to the whole world. He had no evidence, as an agent, relating to the investigation of the appellants.

[30] The appellants rely upon the decision of this court in R. v. Davies (1982), 1982 3809 (ON CA), 1 C.C.C. (3d) 299 for the proposition that once a police informer goes into the field and acts as an agent provocateur he loses the protection of his “cover” and the police informer’s privilege to prevent disclosure of his identity. This general proposition cannot be contested, but the facts in Davies show that the informer became an agent provocateur in the field of the investigation of the accused. Accordingly, the actual holding in Davies is not applicable to the case before us.

[31] Two decisions have been brought to our attention which support the view that an informer can be an agent in one field and not lose his or her protection as informer in unrelated fields. The first is R. v. Reppas, [1993] O.J. No. 3808 (C.A.), affirming an order of Trainor J. which dismissed an application to quash a committal for trial. One of the issues before Trainor J. was whether the preliminary inquiry judge erred in restricting the scope of defence cross-examination of a Crown witness with respect to her activity as in informer in an unrelated case. The particular issue is reflected in the following reasons of Trainor J. dated May 25, 1993 (unreported):

The applicant was restricted in cross-examination of a material witness and agent in the field, in that questions relating to a collateral matter (an unrelated drug case) that would reveal or might reveal her identity to the accused in that case, where she was given protection, were not permitted.

The position taken by the defence is that the name of the accused in that case should be disclosed in order that the defence can better attack the witness’s credibility and to show that the witness is involved as a police agent in entrapment schemes. The sole issue in the case at bar is police entrapment.

I agree with the decision below for these reasons:

1. The witness was no more than a police informer in collateral case and was entitled to protection since the issue of entrapment does not go to innocence.

2. She denied being an instigator in both the subject and collateral cases. The defence should not be permitted to contradict her testimony in the collateral case by relitigating that case.

3. The only issue before the judge below was evidence of guilt sufficient to commit. The entrapment issue and the issue of informer protection are not to be determined by the preliminary hearing.

[32] On the accused’s appeal, this court’s brief endorsement reads: “We think the judgment in appeal was right. The appeal is dismissed.” The notice of appeal and the factums filed on this appeal made it clear that the correctness of Trainor J.’s reasons, set forth above, was the issue in the appeal.

[33] It is reasonable to read this decision as affirming the principle that an informer’s activity in a particular field, which makes him or her an agent in relation to that field, does not make the informer an agent in unrelated fields.

[34] The second decision is that of W. B Lane J. in R. v. Alawar (Ont. Ct. (Gen. Div.), December 10, 1990, unreported). This was an application under s.37 of the Canada Evidence Act respecting the disclosure of information sought in the cross-examination of two police officers relating to the activities of an admitted police informer. The defence sought, at the preliminary inquiry, to cross-examine in relation to the activities of the police informer not only relating directly to the charges before the court, but also activities involving that person’s activities as a police informer in matters not related to the charges before the court or the accused before the court.

[35] Lane J. gave extensive reasons, based principally on the strength of the police informer privilege as set forth in Bisaillon v. Keable (1983), 1983 26 (SCC), 7 C.C.C. (3d) 385 (S.C.C.), for his conclusion that the cross-examination in relation to the informer’s activities in the unrelated investigations should not be allowed. The informer’s waiver of the police informer privilege with respect to the charges before the court did not amount to waiver for all other, unrelated, investigations. This decision, by analogy, supports the position that going into the field does not convert an informer into an agent in relation to unrelated investigations.

[36] In addition to his applying the wrong principle with respect to the determination of when police informer’s status may be lost, I think, with respect, that Bassel J. failed to consider all of the evidence, not only in the affidavit of Detective Cavanaugh but, also, the evidence called in the course of the preliminary inquiry, in determining whether or not Informant #1 was an agent. He fastened on the sentence in the affidavit that Informant #1 “is now, clearly, a police agent”. When all of the evidence is taken into account, I think that the respondent’s submission that there was clear and uncontradicted evidence that Informant #1 was a confidential police informer as against the appellants is correct.

[37] Before continuing with my review of Bassel J.’s reasons, it might be useful to deal with one aspect of the evidence in the affidavit. It is reasonable to ask what the purpose of the reference to Informant #1’s activities under the general heading of “Grant Douglas Clark” was if these activities did not have something to do with, at least, the target Clark, even if this is not set forth or explained in the affidavit. Quite apart from the Crown’s general explanation that this was inserted in the affidavit in the interest of complete disclosure, extending to Informant #1’s activities in unrelated investigations, Detective Cavanaugh explained in cross-examination that, the way the affidavit was drafted, some of the information following the heading Clark, as that following other headings, had nothing to do specifically with the target Clark. I refer to the following:

Q. And is there any particular reason why you used some information that was corroborating information from Informant Number One under the heading of “Talbot” but didn’t so in relation to Clark? In other words, you had some information for Mr. Talbot about Mr. Levac, as I recall?

A. Correct.

Q. There just because it showed that Informant Number One was a reliable informant?

A. Correct.

Q. And even though it had nothing to do with Talbot, it was under Talbot for that purpose?

A. Correct.

Q. There is also information in relation to Clark which could have had the same effect, correct?

A. Clark had his own section.

Q. Okay, so did Levac?

A. Correct.

Q. So, it is just the way you drafted it, there is no sort of rhyme or reason to that necessarily?

A. No, it was the way it was drafted.

[38] Further to this, there are several paragraphs in Detective Cavanaugh’s affidavit setting forth facts which supported the reliability of Informant #1 as an informer, which would not have been necessary if the Crown’s position before the authorizing judge was that Informant #1 was an agent in relation to the offences before the court.

[39] I return to Bassel J.’s reasons. His decision also appears to be based, in part, on the prosecution “trying to ride two horses”, calling Informant #1 a police agent before the authorizing judge and an informer before the preliminary inquiry judge. This bears more on the issue of abuse of process than on whether Informant #1 was an agent or an informer. I turn to the abuse of process issue now.

Abuse of Process

[40] The appellants submit that the prosecution’s change of position on the status of Informant #1 between the time of the application for the authorization, when he was called an agent, and that of the preliminary inquiry, when he was called a police informant only is, in itself, an abuse of process requiring the remedy that the prosecution be bound to its original position that the status of Informant #1 is an agent. This result should follow, the appellants submit, even if the Crown’s first position was wrong and the second one correct. The result would be that the prosecution would be obliged to disclose Informant #1’s identity and produce him for cross-examination. I shall leave until later, the matter of the appropriate remedy and shall address now whether the prosecution’s conduct amounts to an abuse of process.

[41] At the outset, I note that the respondent correctly concedes that Humphrey J. erred in concluding that the Crown was not bound by Detective Cavanaugh’s affidavit on the application for the authorization and, therefore, had not changed its position. The Attorney General of Canada, as the applicant for the authorization under s.186 of the Criminal Code, was, ultimately, responsible for the contents of Detective Cavanaugh’s affidavit.

[42] The appellants placed primary reliance on the decision of this court in R. v. Varga (1994), 1994 8727 (ON CA), 90 C.C.C. (3d) 484. This was a Crown appeal from the respondent’s acquittal on a charge of rape. At the trial, the Crown counsel took no position on whether records relating to the complainant were privileged. The trial judge held that the records were not privileged. Crown counsel then participated in the disclosure of the records and made no objection to their use in the cross-examination of the complainant.

[43] On the Crown’s appeal, the Crown submitted that the trial judge erred in holding that none of the material was privileged and that he further erred in failing to require the defence to demonstrate the potential materiality of the documents before gaining access to them. At p. 497 Doherty J.A. said for the court:

On appeal, Crown counsel resiles from that position, and argues that the trial judge was required to make some additional finding of materiality before the documents could be turned over to the defence. It would be an abuse of the appellate process to accede to this argument. Just as the Crown cannot challenge an acquittal by advancing a theory of liability for the first time on appeal, it cannot secure a new trial by advancing a new test for admissibility that contradicts the one advanced at trial: R. v. Penno, supra, [(1990), 1990 88 (SCC), 59 C.C.C. (3d) 344 (S.C.C.)] at p. 365.

[44] The appellants also rely upon the decision in R. v. Gordon (1999), 1999 15048 (ON SC), 136 C.C.C. (3d) 64 (Ont. Ct. (Gen. Div.)) as being closely in point. In Gordon, wiretap authorizations were obtained based, in part, on information from “a source”. Defence counsel sought disclosure of deleted material in the affidavit used to obtain the authorizations. They submitted that the source may have been a confidential informer at one time but that he had been converted by the Crown to an agent for the police who would be a witness at trial. As such, the usual disclosure rules of the source’s proposed evidence had to be provided to the defence.

[45] In short, the facts as found by O’Connor J. on the evidence before him showed that the informer had become a police agent who, moreover, had expressed a willingness to testify. The informer/agent’s activities had related to the offence before the court. It was not argued that disclosure was mandated as a remedy for abuse of process. It was a plain case of an informer becoming an agent or, at least, of a clear waiver of privilege. It is distinguishable from the case before us.

[46] The first question to be considered, in this appeal, is whether the prosecution, in fact, changed its position. The respondent submits that it did not and that the authorizing judge had all of the facts before him and could have drawn his own conclusions as to the status of Informant #1. Detective Cavanaugh testified before Bassel J. that all of the facts relating to Informant #1’s activities were placed before the court to provide full, fair and frank disclosure – and it was for the court to decide whether Informant #1 was an informer or an agent. In the argument before us, counsel for the respondent conceded that, while the reference to Informant #1, as being “now, clearly, a police agent” did not relieve the authorizing judge of his duty to consider all of the evidence, as a practical matter it may have lowered the threshold of what had to be shown for the Crown to obtain their authorization.

[47] For the purpose of these reasons, I am prepared to assume that the reference to Informant #1 as an agent may have caused prejudice to the appellants, that is, that it created the risk of lowering the authorizing judge’s level of scrutiny of the affidavit and that this amounted to an abuse of process. The next issue is, then, the appropriate remedy.

[48] The appellants submit, on the basis of R. v. O’Connor (1995), 1995 51 (SCC), 103 C.C.C. (3d) 1 (S.C.C.) that they do not have to show that this is one of “the clearest of cases” of abuse of process because they do not seek the remedy of a stay of proceedings. They seek only, as indicated above, that the Crown be bound by its first position – that Informant #1 is an agent.

[49] The respondent vigorously opposes this submission. It submits on the basis of Bisaillon v. Keable, supra, R. v. Scott (1990), 1990 27 (SCC), 61 C.C.C. 300 (S.C.C.), and R. v. Leipert (1997), 1997 367 (SCC), 112 C.C.C. (3d) 385 (S.C.C.) that this remedy is not open to the court to grant. If Informant #1 is, in fact, an informer in relation to the appellants, then both the Crown and the court have the duty to uphold the privilege. There can be no balancing of competing interests, as there is with respect to other kinds of asserted privileges, and no scope for the exercise of discretion. There is only the duty to uphold the privilege.

[50] I think that the respondent is right in this assertion but this does not mean that the appellants are without remedy. In addition, I observe that the remedy of ordering the prosecution to disclose the name of the informer is clearly disproportionate to the alleged wrong. The remedy should, as much as possible, match the wrong done. Accordingly, I think that if the wrong resulted in an authorization that was unlawfully granted then, depending on the circumstances, the proper remedy would be the exclusion of the evidence obtained under the authorization. Decisions bearing in this result, of course, are for the trial judge to make applying the test in R. v. Garofoli (1991), 1990 52 (SCC), 60 C.C.C. (3d) 161 (S.C.C.) at 187-88.

[51] I appreciate that the appellants are entitled to make a Garofoli application in any event, quite apart from any allegation of abuse of process. This, however, does not incline me to the view that the proper remedy is to order the Crown to disclose the name of Informant #1. Because the Crown has the duty to uphold the informer privilege such an order could, possibly, be tantamount to ordering a stay of proceedings because it could lead to the Crown abandoning the prosecution to protect the informer.

Disposition

[52] For these reasons, I would dismiss this appeal.

Released: Aug 10 2000 “STG”

“J. W. Morden J.A.”

“I agree Austin J.A.”

“I agree S.T. Goudge J.A.”