Court of Appeal for Ontario

Date: 2024-02-12 Docket: C67489

Before: Fairburn A.C.J.O., Zarnett and George JJ.A.

Between: His Majesty the King Respondent

And: A.B. Appellant

Counsel: Chris Rudnicki, for the appellant Rick Visca and Brendan Gluckman, for the respondent

Heard: June 29, 2023

Fairburn A.C.J.O.:

A. Overview

[1] This is an appeal from conviction on counts of possession of a [privileged] substance for the purpose of trafficking and [privileged]. The appellant asks this court to set aside the convictions and enter a stay of proceedings because the Crown breached the appellant’s confidential informant privilege when it disclosed [subject of disclosure] to a co-accused.

[2] For the reasons that follow, I agree that the Crown failed in its duty to protect the appellant’s confidential informant privilege and that a stay of proceedings must be entered.

B. Factual Background

(1) Overview

[3] [paragraphs 3-25 privileged]

C. Analysis

(1) The breach of confidential informant privilege

(a) The trial judge’s ruling

[26] The trial judge dismissed the appellant’s application for a stay of proceedings pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms. This application was predicated on what was said to be an abuse of process arising from the breach of the appellant’s confidential informant privilege. In dismissing the application, the trial judge erred by applying the wrong standard for determining when disclosure of information amounts to a breach of confidential informant privilege. Applying the correct standard leads to the invariable conclusion that the appellant’s confidential informant privilege was breached.

[27] [paragraph 27 removed]

[28] The trial judge said that he needed to answer the following question: “Did the documents disclosed to the co-accused tend to suggest that the [appellant] was a confidential informant?” He noted that his sole concern was “whether the records tend to disclose the [appellant’s] [privileged] confidential informant.” The trial judge also observed that the Crown’s duty was not to disclose information that “ tends to suggest that a person is [privileged] a confidential informant” (emphasis added).

[29] [paragraph 29 removed]

[30] Having summarized the appellant’s position, the trial judge concluded that the disclosure “d[id] not tend to suggest that the [appellant] is a confidential informant”. He provided a number of reasons for reaching this conclusion, including that: [six bullet points and corresponding footnote privileged].

[31] The trial judge concluded that the appellant’s position was “based, to a large extent, on speculation, … as to what the co-accused may or may not think and as to the conversation that may result.” Accordingly, the trial judge was not satisfied that the [subject of disclosed record] could tend to cause the “co-accused or anyone to logically infer that the applicant may be a [privileged].”

[32] The trial judge also considered other allegations of [privileged]. Although the trial judge found that the allegations were not made out, he did recognize that there was “no doubt … that the [appellant’s] concerns for [their] safety are genuine, considering that [privileged].”

(b) The legal error: the wrong approach to the question of whether privilege was breached

[33] Respectfully, the trial judge erred in how he approached the question of whether privilege was breached. The question, as he posed and applied it, was whether the information “tended to disclose” the appellant’s identity as an informant instead of whether it might tend to do so. The proper approach was to ask whether the disclosed information, considered in light of the circumstances [privileged], might tend to identify the appellant as an informant. There was clear evidence that met this latter test.

(i) The law of confidential informant privilege

[34] Once it is properly invoked, confidential informant privilege admits of no discretion. It is a near absolute privilege. Subject to a person successfully raising the innocence at stake exception, this class privilege acts as a complete bar to disclosing not only the identity of a confidential informer, but as a complete bar to disclosing “[ a ] ny information which might tend to identify an informer ”, or, “any information that might lead to identification ”. That includes any information that “might implicitly reveal” the informer’s identity: Named Person v. Vancouver Sun, 2007 SCC 43, [2007] 3 S.C.R. 253, at paras. 26, 30 (emphasis added). See also R. v. Leipert, [1997] 1 S.C.R. 281, at paras. 18, 21; R. v. Durham Regional Crime Stoppers Inc., 2017 SCC 45, [2017] 2 S.C.R. 157, at para. 1; and R. v. Crevier, 2015 ONCA 619, 330 C.C.C. (3d) 305, at para. 49. Accordingly, although confidential informant protected information often meets the low threshold for disclosure, that being anything that is not clearly irrelevant, the fact that it is privileged prevents disclosure from being made: R. v. Stinchcombe, [1991] 3 S.C.R. 326, at pp. 339-340; Leipert, at para. 8; R. v. Biddle, 2018 ONCA 520, 141 O.R. (3d) 401, at para. 66; and R. v. Omar, 2007 ONCA 117, 84 O.R. (3d) 493, at para. 39.

[35] Therefore, when it comes to protecting the identity of informants, the Crown is without discretion. The Crown must not disclose “in any proceeding, at any time”, information that may tend to identify a confidential informant. Accordingly, it is without surprise that confidential informant privilege has been described as “extremely broad and powerful” in scope: Named Person, at para. 30.

[36] There are two reasons why confidential informant privilege is granted a wide berth. Confidential informants are instrumental to the criminal justice system, often providing key information in serious criminal investigations that are otherwise unsolvable. The best informants are often those who operate side-by-side with persons in the criminal subculture. When their identities become known, they are at grave risk of retribution. Their lives may be at stake. That is enough to place people charged with the responsibility of protecting their identities on high alert.

[37] But there is more. When informants are not granted the protection they are promised in return for their information, it also has the inevitable effect of placing the criminal justice system at grave risk. This is because, when a privilege slip occurs, it places an obvious chill on the willingness of persons to become confidential informants: Named Person, at para. 101; Durham Regional Crime Stoppers Inc., at para. 1; and R. v. Barros, 2011 SCC 51, [2011] 3 S.C.R. 368, at para. 30. Therefore, so serious is the privilege to the proper functioning of the administration of justice that it belongs jointly to both the Crown and the informant, and neither can waive it without the consent of the other: R. v. Basi, 2009 SCC 52, [2009] 3 S.C.R. 389, at para. 40.

[38] A heavy burden is placed upon the court, police and Crown to protect confidential informant privilege – an obligation that must be actively and sensitively embraced by all. It is essential that all approach the task with a keen understanding that even seemingly innocuous information may reveal an informant’s identity when it is disclosed to an accused: R. v. Shivrattan, 2017 ONCA 23, 346 C.C.C. (3d) 299, at para 68. Those who have to make calls about disclosure do not know what the accused and others already know. Accordingly, the law requires that those disclosure decisions err on the side of caution, assuming that even the disclosure of seemingly bland information can result in a narrowing of the pool. As explained in Omar, at para. 40, “[e]ven 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.”

(ii) The application of the law to the disclosure in this case

[39] This case provides an example of the kinds of facts, which, even if innocuous in a different context, may tend to identify the informant when the actual context is considered. The trial judge’s statement that there were “many reasons which may explain [subject of record] that are far more logical and plausible than [subject of record]” may be true in general. But here, the [subject of the record] was disclosed in the context of a criminal case, and was flagged [privileged], suggesting that explanations about it may be offered or sought. Whether more or less logical or plausible, if one of the reasons for [privileged], in the circumstances, [privileged], that would be information that “may tend to identify” the person as an informer.

[40] The reasons the trial judge gave for saying that the disclosure did “not tend to suggest that the [appellant] is a confidential informant” illustrate that the trial judge failed to approach the matter through the correct legal lens – whether disclosure may tend to reveal the appellant’s identity, as opposed to whether it is likely to do so. The trial judge did occasionally use the words “may tend to suggest” in the ruling. However, this is not the standard that was applied.

[41] [paragraph 41 privileged]

[42] Another example of the overly narrow approach taken in determining the privilege issue is the trial judge’s comment that the appellant’s position should be rejected because it was “based, to a large extent, on speculation, in particular, as to what the co-accused may or may not think and as to the conversation that may result.” This comment ignores the reality that an informant is limited in the questions they can ask to determine what another person suspects or knows without risking disclosure. The comment also misstates what the appellant was asking of the trial judge, namely, that the judge examine the evidence, draw reasonable inferences from it and consider the disclosure in context in determining whether the disclosed information could lead to the identification of the appellant as an informant.

[43] In this case, the trial judge should have analyzed whether, considering the circumstances [privileged], combined with the police note [privileged], could have tended to disclose the appellant’s status as an informant. These circumstances include the following: [balance of paragraph privileged]

[44] It is not far-fetched that the co-accused would ask the appellant about [content of the record]. After all, the parties agree on appeal that the information about [content of the record] would have been “relevant” to the co-accused. As the respondent Crown fairly acknowledges, the co-accused might have been interested [balance of paragraph privileged].

[45] Accordingly, imagine what would happen if the appellant testified at trial and was asked about [the content of the record.] Quite simply, there would be no honest answer that the appellant could give in response to that question that would not undermine the privilege. Indeed, the Crown respondent properly conceded this fact during oral submissions. While the Crown attempted to advance submissions about things that could be done to avoid the appellant having to provide an honest answer, such as staying the proceedings on the spot, respectfully, that remedy would fall well short of what the privilege requires. Disclosure calls cannot be made based on the potential to scramble after the fact should someone get even closer to discovering an informant’s identity. The disclosure should not be made in the first place.

[46] This leaves one question. Should the proceedings be stayed for an abuse of process? As I will now explain, the answer to that question is also yes.

(2) A stay of proceedings is warranted

[47] The abuse of process doctrine is directed at egregious Crown conduct that either seriously compromises trial fairness or the integrity of the justice system: R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167, at para. 50. This case is about whether the Crown conduct falls within the latter, residual category, serving to undermine the integrity of the administration of justice: R. v. O’Connor, [1995] 4 S.C.R. 411, at para. 73; Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391, at para. 89; R. v. Nixon, 2011 SCC 34, [2011] 2 S.C.R. 566, at paras. 41, 59; R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, at para. 31; and R. v. Brunelle, 2024 SCC 3, at para. 27.

[48] On rare occasions, in the “clearest of cases”, a stay of proceedings is warranted for an abuse of process. As recently affirmed in Brunelle, at para. 29, the test for determining whether a stay of proceedings is required involves three requirements:

(1) there must be prejudice to the accused’s right to a fair trial or to the integrity of the justice system that “will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome ” ( Regan, at para. 54; Babos, at para. 32 );

(2) there must be no alternative remedy capable of redressing the prejudice ( Regan, at para. 54; Babos, at para. 32 );

(3) where there is still uncertainty over whether a stay of proceedings is warranted after steps 1 and 2, the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against “the interest that society has in having a final decision on the merits” ( Regan, at para. 57; Babos, at para. 32 ). [Emphasis added.]

[49] In my view, there is clear prejudice to the justice system that will be manifested, perpetuated and aggravated by maintaining the convictions in this case. There is no remedy available to redress the prejudice other than a stay of proceedings.

[50] [Privileged] the prosecution should have been on high alert about revealing a confidential informant’s identity, [privileged]. The appellant’s status as a confidential informant [privileged]. And the federal Crown knew all of that. They also knew about the [privileged]. That is clear from the communications I am about to review.

(a) The approach to this case

[51] Defence counsel first informed the prosecuting Crown about the circumstances [privileged] when the search warrant was executed. Defence counsel specifically told the prosecuting Crown that [privileged]. In that initial communication, defence counsel inquired into whether the Crown might consider consenting to the release of [privileged]. Defence counsel offered to provide proof of the [privileged], and noted that, if the two counsel could not agree upon the matter, it would be “tricky to have this information put before the court” in a way that would not “[privileged] compromise [privileged] confidential informer status.”

[52] It was clearly open to the Crown to deny the request for a consent to the release of [privileged]. However, it was not open to the Crown to ignore the obvious concern over confidential informant privilege that would inevitably come with any ensuing application for the release of [privileged]. Unfortunately, Crown counsel declined to engage with this sensitive issue.

[53] The prosecuting Crown’s first response back to defence counsel was a one-line email, asking whether they were [privileged] [2] or whether it would be [privileged] [3] ? The important thing to note about this first communication is the Crown’s failure to acknowledge the appellant’s concern over privilege.

[54] Unsurprisingly, defence counsel wrote back expressing uncertainty as to why the prosecuting Crown was asking about [privileged] but confirmed that they were not considering [privileged]. Defence counsel then reiterated that [privileged] and asked for a response to the substantive inquiry “relating to the delicate information” that counsel felt worried about putting in the application.

[55] The prosecuting Crown’s response was as follows:

I asked you about [privileged] because I was not sure if your client had [privileged]. In any event, it is your application to bring and although the Crown does not typically give legal advice to counsel you may want to consider provisions for an in camera hearing . [Emphasis added.]

[56] To be clear, the defence was not seeking the Crown’s legal advice. The defence was asking the Crown to do what the Crown is required to do: act as a joint privilege holder and engage in a meaningful discussion about how to protect confidential informant privilege in this very delicate situation. Despite the fact that the informant was an accused, the Crown was under a clear obligation to protect the privilege, and yet there is no indication in the Crown’s response that they understood those obligations. The response seemed to place all responsibility on the informant to protect the privilege.

[57] Not to be deterred by the prosecuting Crown’s response, defence counsel wrote back one more time, clarifying that they were not asking for legal advice. They asked prosecuting Crown counsel to “[p]lease re-read” their initial request and reiterated that [privileged] and, therefore, that the Crown may “consider consenting to [the] release [of] these [privileged] (emphasis in original). Defence counsel also reiterated that they were prepared to provide proof of [privileged], a document that they did not feel they could include in the application for [privileged], given its sensitive nature. Defence counsel also reinforced that this would “avoid the need to have any hearing, in camera or otherwise.”

[58] In response to this plea, the prosecuting Crown wrote as follows:

[Counsel] you indicated in your initial email that you were not sure how to put the information about your client before the court, to which I responded. I suppose I misinterpreted your comment as a question. We will not consent to [privileged].

[59] Despite defence counsel’s repeated efforts to engage the prosecuting Crown on the sensitive issue of confidential informant privilege, Crown counsel rebuffed those efforts.

[60] As it turned out, at the same time that the communications were going back and forth between the prosecuting Crown and defence counsel, the Crown was sending communications to the police. The prosecuting Crown asked the police for an [privileged], one that the Crown said would assist on the application as well as at trial and upon conviction when seeking [privileged]. An officer was assigned for that purpose.

[61] [paragraphs 61-67 privileged]

[68] In this email, the prosecuting Crown misstates the test for protecting confidential informant privilege. It is not about whether information leads to a “natural conclusion” that someone is an informant, but whether that information may tend to identify them as an informant. As explained above, the information in question met that test.

[69] The prosecuting Crown went further and turned the tables on defence counsel, suggesting that it was not the Crown, but defence counsel who was compromising the appellant’s status as an informant by [quotation removed.] Crown counsel said that defence counsel’s expressed concerns were “misguided and appear[ed] to be an attempt to gain some advantage where none [was] warranted.”

[70] At no time did Crown counsel attempt to recover [the disclosed record], which included the [a part of the record] records.

(b) The role of the Crown in protecting confidential informant privilege

[71] There is sometimes confusion over the role of Crown counsel. As a quasi minister of justice, the Crown’s primary role is to pursue justice: Boucher v. The Queen, [1955] S.C.R. 16, at pp. 23-24. This does not mean that the Crown cannot be a vigorous advocate. Quite the contrary. Robust advocacy is part and parcel of the proper pursuit of justice in criminal law. The public expects and deserves nothing less from prosecutors.

[72] At the same time, Crown counsel is no ordinary litigant: R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66, at para. 49. The Crown’s undivided loyalty rests not with a client, but with the administration of justice: David Layton and Michel Proulx, Ethics and Criminal Law, 2nd ed. (Toronto: Irwin Law, 2015), at p. 583, citing McNeil, at para. 49. This loyalty calls on the Crown to rise above the fray and to ensure their communications and conduct are characterized by “[f]airness, moderation, and dignity”: Public Prosecution Service of Canada Deskbook, Part II, ch. 2.2, “Duties and Responsibilities of Crown Counsel”, revised September 12, 2023.

[73] In this case, once the Crown was placed on notice through correspondence with defence counsel about the appellant’s informant status and the [privileged], it was the Crown’s duty to proceed with caution, investigate the situation and engage in meaningful work to ensure that the privilege was not breached. This would have taken thought about how to proceed. However, it was necessary work – work that required setting aside a litigious mindset. Unfortunately, it is apparent through the words and actions of the prosecuting Crown that they did not proceed in this manner. Those words and actions reflect an intentional decision to forge ahead, despite being repeatedly placed on notice of the apparent danger, without giving any consideration to privilege. The result was to place the appellant at risk, and, just as importantly, to place the class privilege at risk.

[74] In my view, there is no alternative remedy capable of redressing the prejudice to the entire class in this case. While the public has a strong interest in a decision on the merits of this case, it has an even stronger interest in the “ancient and hallowed protection” of confidential informant privilege, which plays a vital role in law enforcement: Leipert, at para 9.

D. CONCLUSION

[75] This is one of those rarest and clearest of cases in which the convictions should be stayed for abuse of process. The convictions are set aside and a stay of proceedings is entered.

[76] The court file is sealed and will remain sealed subject to further court order.

[77] The reasons have been written with the protection of confidential informant privilege in mind. Even so, the reasons will be disclosed to the parties before the public. Within seven days of the release of this decision, the parties will inform the court as to whether there is any information in the reasons that may tend to disclose the identity of the informant. If there is any such information, the parties will provide suggestions about how to edit the reasons in a manner so as to protect the appellant’s privilege.

Released: February 12, 2024 Fairburn A.C.J.O.

I agree. B. Zarnett J.A.

I agree. J. George J.A.

[1] This judgment was provided to the parties in its original format. With the input of counsel, this version has been redacted to protect confidential informant privilege.

[2] [privileged]

[3] [privileged]