Her Majesty the Queen v. Omar [Indexed as: R. v. Omar]
84 O.R. (3d) 493
Court of Appeal for Ontario,
Sharpe, Simmons JJ.A. and Pardu J. (ad hoc)
February 22, 2007
Charter of Rights and Freedoms -- Fundamental justice -- Full answer and defence -- Disclosure -- Informer privilege -- Informer privilege not being qualified by Crown's disclosure obligations -- Trial judge erring in ordering edited documents in Confidential Informant File disclosed to defence -- Informant providing very precise details to police so pool of potential informers being very limited -- Trial judge erring in finding that disclosure of edited documents would not tend to identify informer.
Criminal Law -- Evidence -- Informer Privilege -- Informant providing very precise information regarding accused's car and location including that he had a gun -- Pool of people knowing these details small and all likely known to accused -- Release of almost any details might permit accused to identify informer -- Trial judge erring in ordering disclosure of edited information regarding informer on basis that would not identify informer -- Case not coming within innocence at stake exception -- Disclosure ordered by trial judge violating informer privilege -- Crown appeal allowed.
After the police received a detailed tip from a confidential informer, police officers stopped the accused in his car and found a loaded gun in the back seat. The accused was charged with a number of weapons offences. The defence intended to argue that the detention and search violated the accused's rights under ss. 8 and 9 of the Canadian Charter of Rights and Freedoms. Anticipating from the evidence given at the preliminary inquiry that the police would rely on the reliability [page494] of the informer, the defence sought disclosure of the contents of the Confidential Informant File and any other documents relating to contacts between the informer and the police. The trial judge ordered the disclosure of edited documents to the defence. The Crown then brought an application under s. 37 of the Canada Evidence Act, R.S.C. 1985, c. C-5 to protect the documents from disclosure. The trial judge dismissed the application, holding that the information ordered to be produced was relevant to the informer's credibility, trustworthiness and reliability, and that information that merely narrows the pool of people who have the same characteristics or "identifiers" as the informer can be disclosed. The Crown appealed.
Held, the appeal should be allowed.
The Crown had a right to bring a mid-trial appeal from the dismissal of the s. 37 application. A s. 37 application is considered to be a separate and distinct proceeding which gives rise to an independent right of appeal.
Informer privilege is not qualified by the Crown's constitutional disclosure obligation. Subject only to the "innocence at stake" exception, which was not engaged in this case, the Crown and the court are bound not to reveal an informer's identity. Informer privilege protects not only the name of the informer but also any information which implicitly might reveal his or her identity. The trial judge erred by concluding that her edited version of the documents would not tend to identify the informer. There were very few people who could be capable of giving the highly precise and specific tip this informer provided. There was a significant risk that revealing the slightest detail about the informer could serve to permit the accused to identify him or her. The trial judge's order requiring disclosure of the edited documents risked violating informer privilege.
APPEAL from the order of Goodman J., 2006 CanLII 21056 (ON SC), [2006] O.J. No. 2501, 41 C.R. (6th) 41 (S.C.J.) for dismissal of an application under s. 37 of the Canada Evidence Act.
Cases referred to R. v. Leipert, 1997 CanLII 367 (SCC), [1997] 1 S.C.R. 281, [1997] S.C.J. No. 14, 143 D.L.R. (4th) 38, 207 N.R. 145, [1997] 3 W.W.R. 457, 41 C.R.R. (2d) 266, 112 C.C.C. (3d) 385, 4 C.R. (5th) 259, affg 1996 CanLII 471 (BC CA), [1996] B.C.J. No. 764, 106 C.C.C. (3d) 375 (C.A.), consd Other cases referred to Bisaillon v. Keable, 1983 CanLII 26 (SCC), [1983] 2 S.C.R. 60, [1983] S.C.J. No. 64, 2 D.L.R. (4th) 193, 51 N.R. 81, 7 C.C.C. (3d) 385, 37 C.R. (3d) 289; R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421, [1990] S.C.J. No. 115, 43 O.A.C. 1, 116 N.R. 241, 50 C.R.R. 206, 60 C.C.C. (3d) 161, 80 C.R. (3d) 317; R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9, [1994] S.C.J. No. 36, 114 D.L.R. (4th) 419, 89 C.C.C. (3d) 402, 29 C.R. (4th) 243; R. v. Parmar, 1987 CanLII 6867 (ON SC), [1987] O.J. No. 203, 34 C.C.C. (3d) 260 (H.C.J.); R. v. Pilotte, 2002 CanLII 34599 (ON CA), [2002] O.J. No. 866, 163 C.C.C. (3d) 225 (C.A.); R. v. Scott, 1990 CanLII 27 (SCC), [1990] 3 S.C.R. 979, [1990] S.C.J. No. 132, 43 O.A.C. 277, 116 N.R. 361, 1 C.R.R. (2d) 82, 61 C.C.C. (3d) 300, 2 C.R. (4th) 153 Statutes referred to Canada Evidence Act, R.S.C. 1985, c. C-5, ss. 37 [as am.], (6.1), 37.1(1) [as am.] Canadian Charter of Rights and Freedoms, ss. 8, 9
Michal Fairburn and Robert Hubbard, for appellant. Leslie Maunder, for respondent. [page495]
The judgment of the court was delivered by
[1] SHARPE J.A.: -- This appeal concerns the issue of informer privilege and the management of the trial process where that issue is raised.
[2] Two police officers stopped the respondent in his car on the basis of a tip from a confidential informer. They found a loaded gun in the back seat and charged the respondent with a number of weapons offences. The respondent served notice of a challenge to the legality of his detention and the search of his car under ss. 8 and 9 of the Charter of Rights and Freedoms. In support of the Charter application, anticipating from the evidence given at the preliminary inquiry that the police would rely on the reliability [page496] of the informer, the respondent sought disclosure of the contents of the Confidential Informant File and any other documents relating to contacts between the informer and the Toronto Police Service ("TPS"). The Crown resisted production on the basis that the material sought was irrelevant and protected by informer privilege. The respondent conceded that the "innocence at stake" exception to informer privilege did not apply and agreed that he had no right to the disclosure of anything that would reveal the identity of the informer. An edited version of the file kept by the police to record contacts with the informer was disclosed to the respondent, but the Crown and the police resisted production of any other material. After a lengthy process of argument, production and editing that extended over five weeks, the trial judge ordered the disclosure of three files of heavily-edited documents and dismissed a Crown application to protect the documents from disclosure under s. 37 of the Canada Evidence Act, R.S.C. 1985, c. C-5.
[3] The Crown appeals the dismissal of the s. 37 application, arguing that (1) much of this material is irrelevant to the issues raised on the Charter application, and (2) in any event, there is a significant risk that the edited version of the documents would reveal the identity of the informer.
[4] For the following reasons, I would allow the appeal, grant the s. 37 application and set aside the disclosure order.
Facts
[5] The following evidence was given at the preliminary hearing as well as at trial on a voir dire on the appellant's Stinchcombe disclosure application. Officer Mike Allen of the Toronto Police Service received a tip from a "carded" confidential informer (i.e., a known informer having an established relationship with the [page496] police) with whom he had dealt 10 to 20 times in the past and who had proved to be reliable. The informer had a criminal record. The informer told Officer Allen that a man would be in a specific neighbourhood with a gun located behind the armrest in the backseat of his car. The informer provided a detailed description of the person, his clothing and his car, including a licence plate number.
[6] Acting on this information, the police found a man and a car matching the informer's description. Officer Allen and Officer Male followed the car until it turned around and came face-to-face with the police car and stopped. The two officers got out of their car and approached the other car. They identified themselves as police officers. Officer Male, at the passenger side of the respondent's car, noticed that the back seat armrest was down. He testified: "I could see the handgun with the barrel pointed down behind the -- the car seat." He yelled "gun" and Officer Allen opened the driver's side door, placed the respondent under arrest and removed him from the vehicle. The respondent was searched, the gun was seized from his car, and the respondent was eventually charged with several weapons offences and with possession of the proceeds of crime. Allen paid the informer $125 for the information leading to these charges.
Proceedings Before the Superior Court
[7] The respondent served a timely notice of a Charter application to challenge, inter alia, the legality of his detention under s. 9 and of the search of his person and his car under s. 8. The respondent also served a Notice of Application for Disclosure of:
. . . the contents of the Confidential Informant file as maintained by the Superintendent of Detective Services, and any other documents in the custody of the Toronto Police Service that relate to prior dealings with the Confidential Informant in this case.
The Crown did not respond to either notice prior to trial.
[8] The trial began on May 8, 2006 with the respondent's disclosure application. The Crown resisted disclosure, arguing that the documents sought were not relevant to any issue before the court and even if they were, they were subject to informer privilege. The trial Crown took the position that when the police stopped the respondent, they were conducting a valid investigative detention which did not depend upon the informer's reliability. Similarly, as the gun was in plain view of the police, the Crown took the position that the warrantless search and seizure could be supported without the need to establish the informer's reliability. [page497]
[9] More than once, the respondent's trial counsel clearly and unequivocally stated that if the Crown did not intend to rely upon the reliability of the informer to support the validity of the detention and the search and seizure, he would abandon the disclosure application. The trial judge put this squarely to the trial Crown. The trial Crown failed to provide the trial judge with a direct response, but continued to assert the material sought by way of disclosure was irrelevant. The Crown's response, or lack thereof, can only be taken as a refusal to make the concession that seemed to flow logically from the submissions the Crown was making. This concession could have eliminated the need to spend five weeks of court time on the issue of disclosure and informer privilege, a peripheral matter in the context of this trial. As I will explain below, the respondent and the Crown took similar positions on this issue before this court. The respondent conceded that the "innocence at stake" exception did not apply and that anything produced could be edited to avoid disclosure of the informer's identity, but as the Crown refused to concede that the reliability of the informer would not be used in support of the detention and search, insisted that he was entitled to the requested disclosure.
[10] After hearing evidence by way of voir dire and listening to extensive argument, the trial judge ruled on May 10 that "the records that the defence seeks to have produced are relevant to the question of the confidential informant's reliability" and ordered their production, subject to editing to avoid revealing the informer's identity. The TPS, as custodian of the records sought, requested and was granted intervenor status with respect to the issue of informer privilege and editing.
[11] The Confidential Informant File was edited and produced to the respondent on May 12. I observe that before this court, the Crown took the position that this file should not have been disclosed to the respondent. However, the Crown concedes that as the file has been produced, nothing can be done at this stage. Accordingly, I intend to say nothing in these reasons about the propriety of the disclosure of this file.
[12] The disclosure issue was revisited when the respondent asked for disclosure of the informer's criminal record and it was brought to the trial judge's attention that the Crown and TPS had interpreted the trial judge's initial order narrowly to include only the Confidential Informant File. After further extensive submissions, and over the strong objections of the trial Crown counsel, the trial judge ruled on May 15 "for absolute clarity", that the informer's criminal record and all other documents in the possession of the TPS, that "deal with . . . contact with the confidential [page498] informant" be produced to the court to be considered for relevance to the question of "the police's decision to act upon the information of the informant", and if relevant, to be edited and produced.
[13] Matters were delayed for several days when the respondent was arrested on other charges and could not be brought before the trial court. The TPS engaged in an extensive search for all records in its possession relating to the informer. Some documents were produced to the court on May 23. The trial judge heard further submissions and, with the respondent's agreement, ruled that the Crown need not produce documents relating to incidents where the informer was a victim or a witness occurring after the date of the offence. The Crown attempted to highlight the documents to indicate information that might identify the informer. Before that exercise had been completed, the trial judge directed the Crown to provide her with the documents so that she could consider what was relevant.
[14] On May 26, the trial judge presented the Crown with five sealed packages of documents. Two packages contained documents that the trial judge ruled were irrelevant. Three packages contained documents the trial judged ruled to be relevant. These included documents relating to investigations involving the informer that "didn't lead to a charge or perhaps charges that were either withdrawn or dismissed". Those documents had been edited to remove information the trial judge thought would tend to identify the informer. She ordered that those three packages be produced to the defence, but ruled that if Crown counsel took issue with her editing, he could address the issue in open court before producing the documents to the defence.
[15] On May 30, the Crown took issue with the trial judge's editing and submitted that if the material were disclosed, it would "clearly reveal the identity of the informer". The Crown, supported by counsel for the TPS, expressed its concern for the "actual physical safety of the confidential informant" and "the grave and permanent import given the nature of the concern of the confidential informant" and asked for the opportunity either to make ex parte submissions or to file a sealed affidavit for the trial judge's eyes only explaining the Crown's concerns. The trial judge denied this request.
[16] On June 2, the Crown attempted to lead the evidence of Detective Gerry Heaney as an expert on confidential informants to explain the type of information that would tend to disclose the identity of the informer. The trial judge ruled that Detective Heaney's proposed evidence failed to meet the R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9, [1994] S.C.J. No. 36 test for admissibility of [page499] expert evidence. The Crown and counsel for the TPS provided the trial judge with their suggested further edits, arguing that as the court could not know what "the accused and others who have criminal intent know" or "what their suspicions are" or "who they suspect as being the confidential informer, or how narrow the pool of suspects has become", disclosure of anything was like "stepping through a mine field. . . . one wrong foot out of place can have disastrous results".
[17] Several days later, on June 6, the trial judge provided her final edits to the Crown and ordered production. At this point, the Crown invoked s. 37 of the Canada Evidence Act, which provides that a Minister of the Crown or other official may certify "orally or in writing to the court . . . that the information should not be disclosed on the grounds of a specified public interest". Pursuant to the relaxed standard for admissibility under s. 37(6.1), which allows the court to receive evidence that is "reliable and appropriate, even if it would not otherwise be admissible under Canadian law", the Crown renewed its request to call Detective Heaney. The trial judge permitted the officer's evidence to be called. The trial judge initially ruled Detective Heaney to be an expert regarding police dealings with confidential informants and information that would tend to identify an informer. She later ruled that Detective Heaney's evidence dealt with issues of "common sense" and was not necessary under the Mohan criteria because nothing in the officer's evidence required "special knowledge outside of the experience of the trier of fact". Accordingly, it was not expert evidence.
[18] Detective Heaney testified as to 15 categories of information that would serve to identify an informer: (1) age; (2) gender; (3) occupation; (4) socio-economic status; (5) health-related issues; (6) lifestyle choices; (7) associates; (8) connection with the arrest of other persons; (9) dates, times, locations, and the fact of contact with the police as an accused, victim or witness; (10) criminal convictions, discharges, acquittals and withdrawals; (11) any indication that the informer is or has been bound by a recognizance, undertaking, probation order or prohibition order, or is or has been on parole; (12) geographical areas frequented; (13) length of time in the community; (14) length of time as an informer; and (15) motivation for providing information.
[19] Detective Heany testified that the Confidential Informant File should not have been produced. He further testified that he had reviewed the documents edited by the trial judge and expressed the view that the portions of the documents highlighted by the Crown but left in by the trial judge fell [page500] within the 15 categories and could serve to identify the informer. Detective Heaney also testified that even the form of the documents with all information blacked out would indicate the nature of the contact between the informer and the police and that this alone could serve to identify the informer. For the first time, the Crown took the position that none of the documents should be disclosed.
[20] On June 15, some six weeks after the respondent's disclosure application was launched, the trial judge dismissed the Crown's s. 37 application and ordered production of the documents as she had edited them. Her amended reasons of June 20 explain her rationale for doing so [at para. 59]:
The information that I ordered to be produced is relevant to the informant's credibility, trustworthiness and reliability. That information ought to be produced to the defence unless it identifies the informant or tends to do so. Nothing in the evidence or material that I reviewed satisfies me that this is the case.
[21] She found that the information that merely "narrows the pool of people who have the same characteristics or aeidentifiers' " could be disclosed as otherwise, the "mere mention of the involvement of a confidential informer would end any disclosure application" and "[t]here would be no need for a judicial editing in situations where a confidential informer has been involved."
Right of Appeal
[22] Although we are dealing with a mid-trial disclosure order, the Crown has a right of appeal from the dismissal of the s. 37 application. This is considered to be a separate and distinct proceeding which gives rise to an independent right of appeal: see Canada Evidence Act, s. 37.1(1); R. v. Pilotte, 2002 CanLII 34599 (ON CA), [2002] O.J. No. 866, 163 C.C.C. (3d) 225 (C.A.).
Issues
[23] The Crown raised three issues on this appeal:
(1) Did the trial judge err in her ruling on the s. 37 application by holding that the disclosure sought by the respondent was relevant?
(2) Did the trial judge err in her ruling on the s. 37 application by holding that the edited documents should be produced to the respondent?
(3) Did the trial judge err in refusing the Crown the right to make ex parte submissions or to file an ex parte affidavit? [page501]
Analysis
[24] Before dealing with the substantive legal issues raised on this appeal, I wish to make some observations on the issue of trial management.
[25] The Crown argued strenuously on this appeal that this was a routine case that got badly out of hand and that some five weeks of court time were essentially wasted navigating the editing and production of documents requested by the defence which were completely irrelevant to the issues before the court.
[26] The clear implication of the Crown's submission is that the respondent and the trial judge are responsible for several weeks of lost court time: the respondent for making a far- fetched disclosure request, essentially intended to force the Crown to stay the prosecution rather than reveal the identity of an informer; and the trial judge for failing to rule that the material sought was irrelevant and, even if it was relevant, for failing to rule that any disclosure of the material requested would violate the informer privilege. While I agree with the Crown's overall assessment that what occurred here fell well short of the ideal of efficient trial management, the Crown shares substantial responsibility for the unfortunate manner in which this case unfolded in refusing to concede that it was not seeking to rely on the reliability of its informer and in failing to take a clear position on disclosure.
[27] Dealing first with the question of relevance, as I read this record, relevance depended essentially on the position taken by the Crown. As the respondent's trial counsel put it very clearly at least twice during argument before the trial judge, the disclosure he sought was only relevant if the Crown intended to use the confidential informer's reliability to support the validity of the detention and the search: if the Crown agreed that the informer's reliability did not matter, the disclosure application would be withdrawn. The trial Crown continued to argue relevance, but refused to concede the point upon which his relevance argument turned. It is difficult to see why the Crown refused to make that concession.
[28] It was clear from the evidence of the two police officers and the submissions of the trial Crown that the Crown's position was that the validity of the search rested on the assertion that there had been a proper investigative detention and that the gun was in plain view. If the police officers were not believed that the gun was in plain view, as a practical matter, it is difficult to see how the Crown could then shift its ground and succeed by justifying a warrantless search on the basis of information provided [page502] by a reliable informer. Indeed, the officers themselves testified that had the gun not been in plain view, they believed that a search warrant would have been required. The entire issue of informer's privilege, plainly a matter of monumental concern to the Crown and the TPS, could have been avoided without any significant impairment to the Crown's case.
[29] Turning to the issue of informer privilege, here as well, had the Crown taken a clearer position at trial, the matter might well have unfolded more expeditiously. It was only after several weeks, when the Crown brought the s. 37 application, that the Crown advanced the position now asserted on appeal: that as the defence could not demonstrate innocence at stake, none of the documents could be disclosed because no editing could provide sufficient protection for the informer. Prior to the s. 37 application, the Crown resisted disclosure essentially on the basis of relevance. Once the trial judge rejected that position and focused on editing, the Crown engaged in a prolonged debate with the trial judge about how to edit the documents. Moreover, as I have noted, the Crown had already disclosed an edited version of the Confidential Informant File, a position that surely undercut the position it later took on the s. 37 application that not even documents with all but the form blanked out could safely be disclosed.
[30] That said, the position taken by the defence at trial should also be considered. The defence pressed the disclosure issue relentlessly, yet having already obtained the Confidential Informant File, it is difficult to understand what more the defence could realistically expect the files of the TPS to reveal that could have any bearing on the validity of the conduct of the two police officers who found the gun and arrested the respondent. It would not be unduly cynical to infer that the defence tactic had less to do with a genuine request for relevant material and more to do with a strategy designed to force the Crown to stay the prosecution to avoid revealing the identity of the informer. On the other hand, in fairness to the respondent, as I have already pointed out, throughout the entire proceeding, he has been crystal clear that the disclosure request would be withdrawn if the Crown conceded that it would not rely on the reliability of its informant.
[31] The trial judge certainly could and should have taken a firmer hand in moving this issue along. She entertained lengthy and repetitive submissions that became an ongoing dialogue instead of insisting on focused submissions. Her task was certainly made much more difficult by the failure of Crown counsel to develop a clear strategy and a focused approach that would [page503] deal clearly with the legal and factual issues raised by this case. The trial judge was not required to proceed with the disclosure motion on the basis of an abstract theory of relevance that had no foundation in the evidence or anticipated evidence and the positions of the parties, or based on a legal argument that was doomed inevitably to failure. The trial judge could have insisted that the trial Crown clearly state its position before proceeding with the disclosure motion. If the Crown did not rely on the informer's reliability, the trial judge was entitled to rule that the disclosure was irrelevant to the issues on the Charter application and dismiss the disclosure motion on that basis. If the Crown refused to concede that it would not rely [on] the informer's reliability, and the Crown was unable to articulate a tenable position on relevance, the trial judge was entitled to postpone ruling on the disclosure motion until it was possible to determine relevance on the basis of the record on the Charter motion.
[32] Judicial proceedings are not designed on the basis of a cost-benefit analysis, but there surely must be an element of proportionality that informs the manner in which trials are conducted. In this case, there has been a significant expenditure of resources with no benefit that I have been able to discern. The judicial system, like all other public institutions, has limited resources at its disposal, as do the litigants and legal aid. The purpose of this appeal, of course, is not to attribute blame for how an unfortunate situation developed which resulted in several weeks court time being swallowed up on a peripheral issue. Suffice it to say that every effort must be made to keep trials focused on the essential issues. If not, there is a serious risk that our adversary trial system will simply collapse under its own weight and we will all be the poorer. It is in the interest of all constituencies -- those accused of crimes, the police, Crown counsel, defence counsel, and judges both at trial and on appeal -- to make the most of the limited resources at our disposal.
(1) Did the trial judge err in her ruling on the s. 37 application by holding that the disclosure sought by the respondent was relevant?
[33] As I have already stated, it is my view that the Crown's relevancy argument fails because the Crown refused to concede that it would not use the reliability of the informer to justify the actions of the police. If, as the Crown insisted, this was a case about an investigative detention and the seizure of a weapon in plain view, the informer's reliability did not matter and the [page504] disclosure application would have been withdrawn. As the Crown refused to make this concession at trial, it is not open to the Crown on appeal to take the position that information relating to the confidential informer's reliability is irrelevant.
[34] I would add, however, that having had the benefit of reviewing the edited documents, I can say with complete confidence that there is absolutely nothing in them that could possibly assist the respondent in his Charter challenge, even if the reliability of the informer is a live issue.
[35] This makes it unnecessary for me to consider the respondent's submission that as the issue of relevance was decided before the s. 37 application was brought, it is not the proper subject of appeal and nothing I have said should be taken as a pronouncement on that issue.
(2) Did the trial judge err in her ruling on the s. 37 application by holding that the edited documents should be produced to the respondent?
[36] This brings me to the issue of informer privilege and whether the trial judge erred in this case by ordering the disclosure of edited documents that could reveal the identity of the informer.
[37] Confidential informer privilege was described by McLachlin J. in R. v. Leipert, 1997 CanLII 367 (SCC), [1997] 1 S.C.R. 281, [1997] S.C.J. No. 14, 112 C.C.C. (3d) 385, at para. 9 as a rule of "ancient and hallowed protection which plays a vital role in law enforcement". Informer privilege amounts to what Beetz J. described in Bisaillon v. Keable, 1983 CanLII 26 (SCC), [1983] 2 S.C.R. 60, [1983] S.C.J. No. 64, 7 C.C.C. (3d) 385, at p. 105 S.C.R., p. 421 C.C.C. as a "guarantee sanctioned by the law" that "gives a peace office [sic] the power to promise his informers" that the secrecy of their identity will be maintained in exchange for information the informer would otherwise be unwilling to provide out of fear of reprisals. As Cory J. explained in R. v. Scott, 1990 CanLII 27 (SCC), [1990] 3 S.C.R. 979, [1990] S.C.J. No. 132, 61 C.C.C. (3d) 300, at p. 994 S.C.R., pp. 313-14 C.C.C.:
The value of informers to police investigations has long been recognized. As long as crimes have been committed, certainly as long as they have been prosecuted, informers have played an important role in their investigation. It may well be true that some informers act for compensation or for self-serving purposes. Whatever their motives, the position of informers is always precarious and their role is fraught with danger.
[T]he investigation often will be based upon a relationship of trust between the police officer and the informer, something that may take a long time to establish. The safety, indeed the lives, not only of informers but also of undercover police officers will depend on that relationship of trust. [page505]
[38] Informer privilege belongs to the informer, not to the police, and neither the police nor the courts have the power to deny an informer protection. Informer privilege is not qualified by the Stinchcombe disclosure obligation imposed upon the Crown by the Charter: Leipert, supra, at paras. 23-25. It is not a legal right that can be balanced against other competing rights or interests: Leipert, at paras. 12, 14. As stated in Bisaillon, supra, at p. 93 S.C.R., p. 412 C.C.C., the application of confidential informer privilege "does not depend on the judge's discretion, as it is a legal rule of public order by which the judge is bound". Leipert, at para. 17 holds that "[s]ubject only to the aeinnocence at stake' exception, the Crown and the court are bound not to reveal the undisclosed informant's identity". Informer privilege protects not only the name of the informant but also "any information which implicitly might reveal his or her identity": Leipert, at para. 18.
[39] As I have already stated, it is agreed that the "innocence at stake" exception is not engaged in this case and the issue is whether the privilege will be defeated by the disclosure of the documents as edited by the trial judge. As in Leipert, supra, the trial judge was faced with two competing rules. On the one hand, as an accused person, the respondent was entitled to disclosure of all information that was not clearly irrelevant or privileged. On the other hand, the informer was entitled to the protection of informer privilege. The trial judge attempted to satisfy both rules by editing the documents in the TPS files relating to the informer and ordering production of the edited version. As in Leipert, supra, at para. 8, I conclude that the trial judge "gave insufficient weight to both the importance of maintaining informer privilege and the danger of ordering disclosure of [documents] which, despite editing, may enable an accused person to identify the informant".
[40] In my view, in the circumstance of this case, the trial judge erred by concluding that her edited version of the documents would not tend to identify the informer. The informer had provided the police with very detailed information about where the respondent would be found, what he would be wearing, the very car he would be driving, and the precise location in the car where a gun would be found. The pool of people who would be privy to that precise and detailed information must necessarily be very small. The individuals in that pool are likely known to the respondent. Even the slightest piece of information about the informer gleaned from the police files could serve to eliminate some members of the pool or identify the informer. This point was made in Detective Heaney's testimony and has been recognized in the case law on informer's privilege. [page506]
[41] In Leipert, supra, the Supreme Court of Canada affirmed the decision of McEachern C.J.B.C. (1996 CanLII 471 (BC CA), [1996] B.C.J. No. 764, 106 C.C.C. (3d) 375 (C.A.)), who stated at para. 35:
Lastly, in my opinion, judges should be exceedingly cautious about ordering the production of even a carefully edited tip sheet or report for which informant privilege is claimed. Judges should recognize that any confidence they may have about their ability to edit out information that might disclose the identity of an informant is probably misplaced, and possibly dangerously so. The court cannot step into the shoes of the accused and decide, on the basis of his knowledge, that an informant will not be identified. I need only mention that the accused may know that only some very small circle of persons, perhaps only one, may know an apparently innocuous fact that is mentioned in the document. The privilege is a hallowed one, and it should be respected scrupulously.
[42] Other courts have recognized that even the smallest details may provide an accused person with all he or she needs to identify the informer: see R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421, [1990] S.C.J. No. 115, 60 C.C.C. (3d) 161, at p. 1460 S.C.R., p. 194 C.C.C.; R. v. Parmar, 1987 CanLII 6867 (ON SC), [1987] O.J. No. 203, 34 C.C.C. (3d) 260 (H.C.J.), at p. 281 C.C.C. In Leipert, supra, McLachlin J. quoted a portion of the passage from McEachern C.J.B.C.'s reasons quoted above and observed at para. 16 that "[a] detail as innocuous as the time of the telephone call may be sufficient to permit identification. In such circumstances, courts must exercise great care not to unwittingly deprive informers of the privilege which the law accords to them."
[43] I do not agree with the suggestion that because Leipert dealt with anonymous informers it has limited application to the facts of this case. An anonymous informer could be anyone. Given the precise details given to the police by the informer in the present case, the pool of potential informers is very limited. In my view, this called for heightened caution when it came to editing. Leipert does not eliminate the possibility of editing, but holds, at para. 32, that where
it is impossible to determine which details of the information provided by an informer will or will not result in that person's identity being revealed, then none of those details should be disclosed, unless there is a basis to conclude that the innocence at stake exception applies.
[44] In my view, the trial judge erred in concluding that "the phrase aetends to identify the confidential informant' means something more than aenarrows the pool of people who have the same characteristics or "identifiers" ' ". There are very few people who could be capable of giving the highly precise and specific tip this informer provided. There is a significant risk on the facts of this case that revealing slightest detail about the informer could [page507] serve to permit the respondent to identify who the informer is. In my view, the trial judge's order requiring disclosure of the edited documents risked violating informer privilege in a manner that was contrary to the established jurisprudence on informer privilege.
(3) Did the trial judge err in refusing the Crown the right to make ex parte submissions or to file an ex parte affidavit?
[45] As I have concluded that the appeal must be allowed on other grounds, I need not deal with the issue of whether the trial judge should have permitted the Crown to make ex parte submissions or file a sealed affidavit for her eyes only on the s. 37 application or with the issue of the admissibility of Detective Healey's fresh affidavit before this court.
Conclusion
[46] For these reasons, I would allow the appeal, grant the s. 37 application and set aside the trial judge's order requiring disclosure of the edited material from the TPS files.
Appeal allowed.