COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Bell, 2014 ONCA 665

DATE: 20140925

DOCKET: C58091

Hoy A.C.J.O., Gillese and MacFarland JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Michael Bell

Appellant

Howard L. Krongold, for the appellant

Croft Michaelson, for the respondent

Heard and released orally: September 4, 2014

On appeal from the Canada Evidence Act Ruling s. 37 by Justice Martin S. James of the Superior Court of Justice, dated December 12, 2013.

ENDORSEMENT

[1] In cases involving informer privilege, we begin by recalling the admonition of the Supreme Court of Canada in the seminal case of R. v. Leipert, 1997 CanLII 367 (SCC), [1997] 1 S.C.R. 281:

Courts must exercise great care not to unwittingly deprive informants of the privilege which the law accords them.

and from there move to the more recent decision of this court in R. v. Omar (2007), 2007 ONCA 117, 218 C.C.C. (3d) 242 (Ont. C.A.) where Justice Sharpe on behalf of the court noted that

The privilege is a hallowed one, and it should be respected scrupulously.

[2] Every case is fact specific and must be considered on its own particular facts. In some cases, for example, whether an informant has a criminal record may not tend to identify an informant and in others it could.

[3] As the court below noted, at para. 6 of the reasons:

In discharging the court‘s duty, …, the essential question becomes:

What information may tend to identify the informant?

[4] In this case, the incident leading to the appellant’s arrest took place in a small community. The information Officer Hicks received from the informant was:

• the appellant’s identity
• that on that day he would be in possession of 2 packages of cocaine weighing between 1/8 and 1/4 ounces
• he would be transporting the drugs in a white Dodge Intrepid motor vehicle about the year 2000 bearing Ontario Plate BAKJ720
• where the drugs were being taken from and delivered to.

[5] The application judge carefully reviewed the law in this area and there is no doubt, reviewing the transcript of the argument and his interaction with counsel, that he was fully aware of the factual circumstances before him and well informed as to the applicable law. After considering full submissions, he allowed the Crown’s application and denied disclosure of the information sought by defence counsel.

[6] In our view, there is no error. The appeal is dismissed.

“Alexandra Hoy A.C.J.O.”

“E.E. Gillese J.A.”

“J. MacFarland J.A.”