Her Majesty the Queen v. X.Y. [Indexed as: R. v. Y. (X.)]

105 O.R. (3d) 433

2011 ONCA 259

Court of Appeal for Ontario,

Gillese, Lang and Watt JJ.A.

April 4, 2011

Abuse of process -- Informer privilege -- Accused discussing activities as informer in police interview after officers assuring accused that recording equipment had been turned off -- Officer not attempting to confirm accused's claim to be police informer before providing entire transcript to Crown for disclosure and prosecutor not questioning police about accused's informer status before disclosing transcript to defence -- Accused suffering retribution and receiving threats of future retribution -- Trial judge erring in refusing to grant stay of proceedings on basis of breach of informer privilege -- Conduct of police and Crown amounting to gross negligence -- Trial judge failing to consider impact of disclosure on current and prospective informers.

While being interviewed by a police officer, the accused asked that the recording equipment be turned off before disclosing the accused's prior activities as an informer. Unknown to the accused, although one recording device was turned off, a secondary system recorded the entire interview. The officer did nothing to confirm or refute the accused's claim to be a police informer and there is no evidence that the officer sought advice from a supervisor before including the full transcript in the materials provided to the Crown for disclosure to defence counsel. The prosecutor did not question the police about the accused's informer status before disclosing the transcript to the defence. When defence counsel pointed out the breach of informer privilege, the prosecutor moved quickly to recover all documents that contained the text of the interview and stated that the accused's interview would not be tendered at trial. The accused was attacked in detention, explicitly because the attacker had learned from disclosure in another case that the accused was a "rat", and the attacker made threats of future harm. The accused unsuccessfully sought admission into the witness protection program. The trial judge dismissed the accused's application for a stay of proceedings, characterizing the conduct of the police and the prosecutor as inadvertent and unintentional and holding that to continue the prosecution would not result in an unfair trial or have any material effect on the accused because of the significant and diligent efforts the prosecutor had made to remedy the breach and reconstitute the privilege. The accused appealed the subsequent conviction.

Held, the appeal should be allowed.

The trial judge erred in concluding that to permit the prosecution to continue would not further prejudice the accused; in failing to properly consider the effect of the breach on the overall repute of the administration of justice; in concluding that the abuse would not be perpetuated and aggravated in the future; and in concluding that the conduct of the police and prosecutor could be excused by their subsequent efforts to reconstitute the privilege. The conduct of the police and prosecutor amounted to gross negligence. Informer privilege is an absolute class privilege, to which a single exception applies that is irrelevant to this appeal. The ban on revealing an informer's identity protects not only an individual informer from possible retribution, but also signals to potential informers that their identity, too, will be protected. It is the obligation of the police and Crown to ensure that the privilege is protected. The trial judge had evidence of actual and [page434] promised retribution, yet failed to consider the overall impact of the disclosure on current and prospective informers. It is far from clear that once informer privilege has been lost, it can somehow be restored to its original vitality. The proceedings should be stayed for abuse of process.

APPEAL by the accused from a conviction entered by a judge of the Superior Court of Justice (name of judge and date of decision withheld).

Cases referred toApplication to Proceed In Camera (Re), [2007] 3 S.C.R. 253, [2007] S.C.J. No. 43, 2007 SCC 43, 285 D.L.R. (4th) 193, 368 N.R. 112, [2008] 1 W.W.R. 223, J.E. 2007-1909, 247 B.C.A.C. 1, 73 B.C.L.R. (4th) 34, 224 C.C.C. (3d) 1, 51 C.R. (6th) 262, 75 W.C.B. (2d) 103, 162 C.R.R. (2d) 104, EYB 2007-124673; Canada (Minister of Citizenship and Immigration) v. Tobiass, 1997 CanLII 322 (SCC), [1997] 3 S.C.R. 391, [1997] S.C.J. No. 82, 151 D.L.R. (4th) 119, 218 N.R. 81, J.E. 97-1836, 1 Admin. L.R. (3d) 1, 118 C.C.C. (3d) 443, 14 C.P.C. (4th) 1, 10 C.R. (5th) 163, 40 Imm. L.R. (2d) 23, 74 A.C.W.S. (3d) 52, REJB 1997-02452; R. v. Barros, [2010] A.J. No. 387, 2010 ABCA 116, 75 C.R. (6th) 257, 208 C.R.R. (2d) 206, 254 C.C.C. (3d) 50, 477 A.R. 127, 25 Alta. L.R. (5th) 326, [2010] 10 W.W.R. 36; R. v. Basi, [2009] 3 S.C.R. 389, [2009] S.C.J. No. 52, 2009 SCC 52, 311 D.L.R. (4th) 577, 395 N.R. 240, J.E. 2009-2119, 248 C.C.C. (3d) 257, EYB 2009-166302; 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, J.E. 97-357, 112 C.C.C. (3d) 385, 4 C.R. (5th) 259, 41 C.R.R. (2d) 266, 33 W.C.B. (2d) 229; R. v. O'Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, [1995] S.C.J. No. 98, 130 D.L.R. (4th) 235, 191 N.R. 1, [1996] 2 W.W.R. 153, J.E. 96-64, 68 B.C.A.C. 1, 103 C.C.C. (3d) 1, 44 C.R. (4th) 1, 33 C.R.R. (2d) 1, 29 W.C.B. (2d) 152; R. v. Regan, [2002] 1 S.C.R. 297, [2002] S.C.J. No. 14, 2002 SCC 12, 209 D.L.R. (4th) 41, 282 N.R. 1, J.E. 2002-377, 201 N.S.R. (2d) 63, 161 C.C.C. (3d) 97, 49 C.R. (5th) 1, 91 C.R.R. (2d) 51, 52 W.C.B. (2d) 150

Seth P. Weinstein, for appellant. Robert Hubbard, for respondent.

[1] BY THE COURT: -- Informer privilege provides an all but absolute bar against revealing any information that might tend to identify a confidential informer. Courts have no discretion once the existence of the privilege is established. A judge is under a duty to protect the informer's identity. Informer privilege accords no place to judicial balancing of benefits enuring from the privilege against any countervailing considerations.

[2] The Crown has an obligation similar to that of the court. Since the privilege is jointly "owned" by the Crown and the informer, the Crown has no right to disclose the informer's identity without the informer's consent. The principle does not permit the Crown to reveal any information that might tend to identify an informer as part of the Crown's disclosure obligations.

[3] The appellant invoked informer privilege, more accurately a breach of informer privilege, as the basis upon which to stay a conviction entered at the end of trial. The trial judge rejected the [page435] appellant's claim. The appellant seeks the same remedy on appeal. For the reasons that follow, the appellant succeeds. The Background Facts

[4] The appellant's disclosure of activities as an informer first emerged during a post-arrest police interview. After some questioning about the circumstances underlying the arrest, the appellant asked that the recording device be shut off. An interviewing officer left the room to do so. The master recording system was turned off, but a secondary system continued to operate and recorded the entire interview. Assured by the officer that their confidential discussions were no longer being recorded, the appellant discussed various activities as an informer and identified the officer to whom the information about those activities had been provided in confidence.

[5] At the end of the interview, the officer who had assured the appellant that the informer activities discussion had not been recorded, turned over the disk of the interview to an administrative assistant for transcription.

[6] When the officer received the transcription of the interview, it was obvious that the informer activities discussion had in fact been recorded and transcribed.

[7] The place at which the discussion of informer activities begins is easily found in the transcript of the interview. But the officer who received the transcript, who had done nothing in the interim to confirm or refute the appellant's claim to be a police informer, simply included the full transcript in the materials provided to the prosecutor for disclosure to defence counsel.

[8] Nothing in the record indicates that the investigator who reviewed the transcript spoke to a superior officer about the "off record" discussion, sought legal advice from the Crown or took any steps to ensure the confidentiality of the informer activities discussion.

[9] Nothing changed when the disclosure material, including at least the transcript of the full interview, was turned over to the prosecutor. The prosecutor did not ask the police about the appellant's discussion of informer activities or whether they had taken any steps to confirm the appellant's claim.

[10] The voluminous disclosure provided to various defence counsel included the full transcript of the appellant's interview. Disclosure included paper and electronic copies. Defence counsel had this disclosure for more than one year.

[11] When the prosecutor notified the appellant's counsel that he (the prosecutor) intended to voir dire the appellant's interview at trial in case the appellant testified as a defence witness, [page436] the appellant's counsel pointed out the breach of informer privilege. The prosecutor, after first verifying the appellant's claim of confidential informer status, moved quickly to recover all documents that contained the text of the interview and notified the appellant's counsel that the interview would not be tendered for admission as evidence at trial.

[12] The appellant sought admission into the witness protection program but was rejected. While in custody, the appellant was assaulted. An attacker told the appellant that some disclosure the attacker had seen confirmed the appellant was a "rat". Threats of future harm were also made. The Principles Invoked

[13] The appellant seeks a stay of proceedings on the basis of abuse of process. To be more specific, the appellant relies upon what is often termed the "residual category" of official misconduct described in R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297, [2002] S.C.J. No. 14, at para. 54:

Regardless of whether the abuse causes prejudice to the accused, because of an unfair trial, or to the integrity of the justice system, a stay of proceedings will only be appropriate when two criteria are met:

(1) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; and

(2) no other remedy is reasonably capable of removing that prejudice. See, also, R. v. O'Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, [1995] S.C.J. No. 98, at para. 75; and Canada (Minister of Citizenship and Immigration) v. Tobiass, 1997 CanLII 322 (SCC), [1997] 3 S.C.R. 391, [1997] S.C.J. No. 82, at para. 90. The Principles Applied

[14] The trial judge dismissed the appellant's pre-trial motion to stay proceedings on the basis of abuse of process. The trial judge characterized the conduct of the police and prosecutor in disclosing the full interview with the appellant as inadvertent and unintentional. The judge concluded that to continue the prosecution of the appellant would not result in an unfair trial, nor have any material effect on the appellant because of the significant and diligent efforts the prosecutor had made to remedy the breach and to reconstitute the privilege. In the trial judge's view, nothing suggested a repetition of the investigative and prosecutorial conduct in the future and the societal interest in a trial on the merits of the charges the appellant faced tipped the scales against entry of a stay of proceedings. [page437]

[15] It is a well-settled principle of our law that, setting to one side an exception that has no application in this case, informer privilege is absolute. It is so sacrosanct that even the right to make full answer and defence, of which the right to disclosure is an essential feature, does not alone trigger an exception to informer privilege: R. v. Leipert, 1997 CanLII 367 (SCC), [1997] 1 S.C.R. 281, [1997] S.C.J. No. 14, at paras. 23-25; R. v. Basi, 2009 SCC 52, [2009] 3 S.C.R. 389, [2009] S.C.J. No. 52, at para. 43. Informer privilege is not a rule of evidence, confined to the courtroom, rather it is an amalgam of an evidentiary rule and a principle of immunity and secrecy at work not only in, but also outside judicial proceedings: R. v. Barros, 2010 ABCA 116, [2010] A.J. No. 387, 254 C.C.C. (3d) 50 (C.A.), at paras. 49-52.

[16] Equally well-established is the principle that the duty imposed to keep an informer's identity confidential applies to the police and to the prosecutor: Application to Proceed In Camera (Re), 2007 SCC 43, [2007] 3 S.C.R. 253, [2007] S.C.J. No. 43, at para. 26.

[17] In our view, the trial judge erred in failing to enter a stay of proceedings. The errors consisted of (i) concluding that to permit the prosecution to continue would not further prejudice the appellant; (ii) failing to properly consider the effect of the breach on the overall repute of the administration of justice; (iii) concluding that the abuse would not be perpetuated or aggravated in the future; and (iv) concluding that the conduct of the police and prosecutor could be excused by their subsequent efforts to reconstitute the privilege.

[18] To characterize the police and prosecutorial conduct in breach of the informer privilege as anything less than gross negligence is to ignore reality.

[19] Even if we assume that the recording of the discussion of the appellant's activities as a police informer was inadvertent, it must have been clear to investigators when the transcript of the interview was delivered that it (the transcript) included significantly more than the brief preliminary questioning about the offence charged. The officer who received the transcript was at the interview, thus knew the nature of the discussion that took place. The officer did nothing to ensure that informer privilege was not breached. The officer took no steps to separate the informer activities discussion from the rest of the interview, for example, to place it in a sealed packet, to solicit the advice of [page438] senior officers, to seek legal advice from the prosecutor or even to confirm the informer status of the appellant.

[20] When the prosecutor received the interview transcript from the police, the earlier breach of privilege was exacerbated. The prosecutor took no steps to confirm the appellant's status as an informer, or edit the interview before disclosure to several defence counsel. In the result, disclosure included material that not only revealed the appellant's activities as an informer, but included the substance of what the appellant disclosed during the interview.

[21] Thus, not one but two state agencies, each under a duty to protect informer privilege, defaulted on their obligations, breached the privilege and disclosed to others the appellant's status and some of the information provided.

[22] Informer privilege is a class privilege. The ban on revealing an informer's identity protects not only an individual informer from possible retribution, but also signals to potential informers that their identity too will be protected. Courts have emphasized the general protection afforded by the rule to all informers, past and present: Application to Proceed In Camera (Re), at para. 18.

[23] In this case, the trial judge had evidence of retribution, actual and promised. But the trial judge did not consider the overall impact of the disclosure such as occurred here on current and prospective informers. Official conduct such as occurred here could have a significant impact on future disclosures by current and prospective informers to the detriment of the administration of justice overall.

[24] The trial judge also attached much significance to the prosecutor's attempts to remedy the breach and reinvigorate the privilege. We are far from satisfied that once the privilege has been lost that it can somehow be restored to its original vitality. Indeed, to reach this conclusion would seem somewhat at odds with basic principles concerning the loss of other class privileges.

[25] In the result, we are satisfied that this is one of those rarest of cases in which the conviction recorded at trial should be stayed for abuse of process. A stay of proceedings is entered and the appellant ordered released from custody unless held by some other legal process.

Appeal allowed.