The court released its judgment in this matter to counsel, the appellant and the trial judge only, on June 2, 2023, following an in camera hearing. The court has received submissions from counsel who reviewed the unredacted judgment. The court has determined that the attached redacted version of the reasons should be released to the public.

The full reasons along with the rest of the Court of Appeal file remain under seal.

Court of Appeal for Ontario

Date: 2023-07-18 Docket: C69770

Before: Huscroft, Harvison Young and Thorburn JJ.A.

Between:

His Majesty the King Respondent

And

John Doe Appellant

On appeal from the conviction entered on [date redacted] by a judge [name of judge redacted] of the [redacted] Court of Justice, and from the sentence imposed on [date redacted].

Reasons for Decision

[1] [Redacted]

[2] The appellant [redacted]. Prior to sentencing, the appellant brought an application for a stay of proceedings alleging that s. 7 of the Charter had been violated by the disclosure of their status as a confidential informant. The application was dismissed. The sentencing judge declined to impose a conditional sentence as requested by the appellant [redacted].

[3] The appellant appeals conviction and seeks leave to appeal sentence. The appeal is dismissed for the reasons that follow.

The Conviction Appeal

[4] [redacted]

[5] [redacted]

[6] [redacted]

[7] The Crown called several police officers to testify on the application, including the handler. [redacted] The handler did not believe that it was possible that a leak of the appellant’s informant status could have originated from within the police.

[8] The appellant’s position on the application was that they had not leaked the information and that the leak had to have come from the police.

[9] [redacted] The appellant argues that the trial judge should have [redacted] started [redacted] from the established fact that a breach of informer privilege had occurred [redacted].

[10] We disagree. The trial judge was entitled to address preliminary factual issues first. Given the trial judge’s finding concerning the alleged [redacted], there was no [redacted] analysis for the application judge to undertake. No [redacted] could have overcome the significant credibility and reliability issues with respect to the [redacted] evidence. [redacted]

[11] The appellant argues that the trial judge should have drawn an adverse inference from the Crown’s failure to call [redacted]. This argument must be rejected. The burden was on the appellant to provide evidence of the alleged police breach and the appellant failed to do so. There was no basis to draw an adverse inference.

[12] The conviction appeal is dismissed.

The Sentence Appeal

[13] [redacted] The appellant argues that there is a considerable risk that their safety will be jeopardized in prison and that this warrants a conditional sentence.

[14] While we recognize the importance of ensuring the safety of confidential informants, and the possibility of harm that results from divulging their status, [redacted] a conditional sentence inappropriate.

[15] There is no error in principle that impacted the sentence, nor is the sentence demonstrably unfit. Accordingly, leave to appeal sentence is granted but the appeal is dismissed.

“Grant Huscroft J.A.”

“A. Harvison Young J.A.”

“Thorburn J.A.”