ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: Ex Parte

DATE: 2015-06-09

BETWEEN:

HER MAJESTY THE QUEEN

– and –

UNNAMED PERSON

Counsel not named

HEARD: June 9, 2015

ENDORSEMENT

GRAY J.

[1] An application was brought before me ex parte and in chambers by the Crown for a rather unusual order. Because the issue before me relates to a confidential informant, I will keep my description of the facts as skeletal as possible, and I will not identify counsel who appeared before me.

[2] All I will say about the ongoing prosecution is that there is more than one accused. One of the accused has made a statement in which that person has disclosed that he or she is a confidential informant. The activities of the informant, as disclosed, have nothing to do with the charges involved in the prosecution.

[3] Because there is more than one accused, the Crown is obliged to disclose the statement of this accused to counsel for the others. However, to disclose the complete statement would disclose the fact that this particular accused is a confidential informant.

[4] In order to overcome the difficulty, the Crown has produced a redacted version of the statement, both in videotape form and in printed form. In both versions, the redactions have been made in such a way that it is not possible to detect that any redactions have been made.

[5] Counsel for the Crown proposes to release to counsel for the co-accused the redacted version of this accused’s statement without disclosing that any redactions have been made. The Crown asks me to make an order authorizing this procedure.

[6] I am not prepared to grant the order sought. In substance, what I am being asked to do is to authorize the creation of evidence that is not what it appears to be, and to give judicial blessing to its release and use in a judicial proceeding. This I am not prepared to do.

[7] Counsel for the Crown argues that if I do not make such an order, the Crown will be placed in an impossible position. If the Crown advises counsel that redactions have been made in this accused’s statement, without disclosing why they were made, it is likely that they and their clients will discern that this accused is probably a confidential informant. The damage will be done. If, on the other hand, counsel for the Crown refuses to release the statement, without saying why, counsel for the co-accused will undoubtedly bring a motion before the trial judge for its disclosure. That will probably produce the same result – it will not be difficult to infer that the maker of the statement is a confidential informant.

[8] In the final analysis, the Crown may be forced to simply stay the charges. That means that a number of potentially guilty people may walk free as a result of something entirely collateral to the charges themselves. The Crown submits that that is not in the public interest.

[9] I do not minimize the difficulty in which the Crown now finds itself. However, that is the inevitable result of decisions of the Supreme Court of Canada, as well as the Court of Appeal, that have emphasised that informer privilege is absolute, save only for a narrow exception where it can be shown that innocence is at stake: see Bisaillon v. Keable, 1983 26 (SCC), [1983] 2 S.C.R. 60; Named Person v. Vancouver Sun, 2007 SCC 43, [2007] 3 S.C.R. 253; and R. v. Omar (2007), 2007 ONCA 117, 84 O.R. (3d) 493 (C.A.). Even the right to full disclosure, which is part of the constitutional right to make full answer and defence, will not override the privilege: see R. v. Leipert, 1997 367 (SCC), [1997] 1 S.C.R. 281. Improper disclosure, that violates the privilege, can have serious consequences in both a criminal context and a civil context: see R. v. Y.(X.) (2011), 2011 ONCA 259, 105 O.R. (3d) 433 (C.A.); and Nissen v. Durham (Regional) Police Services Board, 2015 ONSC 1268, [2015] O.J. No. 924 (S.C.J.).

[10] The courts have made it clear that not only the identity of a confidential informant must be protected, any information that may tend to suggest that a person may be a confidential informant must not be disclosed. In a case such as this, I am prepared to assume that to disclose a statement and say there are redactions, without saying why, will likely raise an inference that the maker of the statement is a confidential informant. Similarly, to refuse to disclose a statement and to refuse to say why will likely raise the same inference.

[11] In most cases, protection of the privilege can be accommodated while, at the same time, allow a prosecution to be continued. In the case of a witness who is not an accused, disclosure of that person’s status as a confidential informant can be avoided. In a case where there is reliance on a confidential informant to support an Information to Obtain for a search warrant application, redactions can be made to protect the identity of the confidential informant.

[12] However, in the case of a multi-accused prosecution, where one of the accused happens to be a confidential informant and has made a statement, any potential solutions are not simple. It will be up to the Crown, and perhaps the trial judge, to see whether any solutions are possible. If there are none, it is possible that a stay of the charges may be required.

[13] However, these issues are not for me to resolve. I will simply say that I will not do what I am being asked to do.

[14] The application to authorize the creation and release of a redacted version of this accused’s statement, without disclosing the redactions or the fact that redactions have been made, is dismissed.

[15] I have granted an order sealing the application before me and the material in support of it, and I have signed the order.

Gray J.

Released: June 9, 2015