ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-13-1015
DATE: 2013-12-12
B E T W E E N:
HER MAJESTY THE QUEEN
Andre Seguin, for the Crown
- and -
MICHAEL BELL
Michael March, for Mr. Bell
Accused
HEARD: December 9, 2013
RULING ON SECTION 37 OF THE
CANADA EVIDENCE ACT
JAMES J.
[1] This is a Crown application for a ruling pursuant to Section 37 of the Canada Evidence Act. Section 37 permits a Minister of the Crown in right of Canada or other official to object to the disclosure of information on the grounds of a specified public interest, in this case, confidential informer privilege.
[2] This application arose in the course of a preliminary inquiry. The police arrested the accused following a traffic stop on the basis of information provided by a confidential informant. A subsequent search of the vehicle resulted in the discovery of drugs and drug-related paraphernalia.
[3] During the cross-examination of the police officer who received the information from the confidential informant, defence counsel asked a series of questions relating to the informant, such as whether the informant was registered with the Ontario Provincial Police, whether he or she had provided reliable information in the past, etc. Crown counsel objected to the disclosure of this information. An exchange followed between the presiding justice and counsel that refined the scope of the questions that would become the subject matter of this application. Defence counsel said that the questions generally conform to the type of information respecting a confidential informant that an affiant would include in an affidavit in support of an application to obtain a search warrant. The specific questions are appended as Schedule A to this ruling. Crown counsel is not objecting to the disclosure of information in answer to questions 3, 4, 12, 14 and 15.
[4] An invocation of the confidential informer privilege engages a broad and strict prohibition against the disclosure of information that may tend to identify the informant. The importance of the privilege is underscored by the fact that it is not subject to Stinchcombe disclosure rules and is untempered by the right to make full answer and defence. (See R. v. Leipert, [1997] 1 S.C.R. 231 at para. 23-25). The privilege has been described as “nearly absolute” and “beyond the discretion of a trial judge”. (See Named Person et al v. The Vancouver Sun et al, 2007 SCC 43, [2007] S.C.J. 43 at para 19 and R. v. Basi, [2009] S.C.C. 52 at para. 37). The only exception that can trump the privilege is the innocence at stake doctrine which is not engaged on the facts of this application.
[5] The balancing of competing interests described in subsection 37(5) is to be read down such that there should be no case-by-case weighing of the justification for the privilege. (Named Person at para. 22, 30).
[6] In discharging the court’s duty to protect the informant’s identity, the essential question becomes: What information may tend to identify the informant? In the present application, defence counsel argues that the requested information does not tend to identify the informant. Whatever the answer may be, it is clear that the issue must be considered carefully and cautiously.
[7] In R. v. Omar (2007), 2007 ONCA 117, 84 O.R. (3d) 493 (C.A.), the trial judge heard evidence from a police officer who listed 15 categories of information that would serve to identify an informant:
(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 former 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 (para. 18).
[8] The trial judge eventually permitted production of a heavily-edited confidential informant file after a prolonged debate respecting what information should be redacted. In her reasons for decision, the trial judge said the remaining information was relevant to the informant’s credibility, trustworthiness and reliability. She found that information that merely “narrowed the pool of people who have the same characteristics or identifiers” could be disclosed since otherwise, the “mere mention of the involvement of a confidential informer would end any judicial application”. (para. 20-21).
[9] A Crown appeal of the trial judge’s ruling was allowed and in so doing, Sharpe, J.A. observed that:
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.
…the privilege a hallowed one, and it should be respected scrupulously… courts must exercise great care not to unwittingly deprive informers of the privilege which the law accords to them. (para. 41, 42)
[10] There is a danger in second-guessing the decision of Crown counsel to claim the privilege and in limiting the scope that ought to be accorded to it. The court’s first duty is to protect and uphold the privilege. Accordingly, this application is granted. The disclosure of the information to answer the indicated questions in Schedule A shall not be permitted.
Honourable Justice Martin James
Released: December 12, 2013
COURT FILE NO.: CR-13-1015
DATE: 2013-12-12
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
MICHAEL BELL
Defendant
RULING ON SECTION 37 OF THE
CANADA EVIDENCE ACT
JAMES J.
Released: December 12, 2013