CITATION: R. v. Nguyen, 2015 ONSC 775

COURT FILE NO.: CRIMJ(F) 1102/15

DATE: 20160129

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Stephane Marinier, for the Respondent

Respondent

• and -

VAN DAO NGUYEN

Leora R. Shemesh, for the Applicant

Applicant

HEARD: December 14, 2015

RULING

TZIMAS J

1The Applicant seeks disclosure of the transcript and audio of a 911 call that was made on March 6, 2015 at 6:54 p.m. that concerned activities at the parking lot of Square One in Mississauga. The anonymous caller reported that he saw an Asian male, approximately thirty years of age, in a green minivan in the LCBO parking lot at Square One Mall in Mississauga holding a handgun. On being advised that he was speaking to the police, the anonymous caller hung up. That occurred at 6:57 p.m. The police was dispatched immediately to the mall where at approximately 7:02 p.m. they located the Applicant in a green Caravan and detained him.

2The Crown opposes the application on the grounds that the anonymous 911 caller was a confidential informant. Unless the Applicant could provide an evidentiary basis upon which the Applicant could raise the “innocence at stake” exception to informer privilege, that communication is protected by informant privilege and the Applicant is not entitled to any kind of copy the 911 call. The submissions were limited to the issue of whether the disclosure is made. The Crown suggested that the “innocence at stake” exception would only have to be addressed if the court denied the disclosure of the statement.

3A significant component of the Crown’s submissions was contained in the actual audio of the 911 call, which I heard ex parte and which was then sealed. The basis for holding that hearing was the Crown’s representation as an officer of the Court that the language and tone in the caller’s voice, combined with the way he hung up were relevant and essential elements for the court’s consideration. The Court had to hear the audio to be in a position to draw the necessary inferences in support of the finding of informant privilege.

4Various cases, starting with R. v. Leipert, 1997 CanLII 367 (SCC), [1997] 1 S.C.R. 281 and including the cases referred to by counsel have addressed the issue of informant privilege. For the confidential informant privilege to be invoked, the Crown must satisfy the following test as laid out in R v. Named Person B, 2013 SCC 9, [2013] 1 S.C.R. 405 at para. 18, on a balance of probabilities:

In R v. Barros, 2011 SCC 51, [2011] 3 S.C.R. 368, this Court held that “not everybody who provides information to the police thereby becomes a confidential informant” (para.31). The Court was clear, however that “the promise [of protection and confidentiality] need not be express [and] may be implicit in the circumstances” (para.31, citing Bisaillon v. Keable, 1983 CanLII 26 (SCC), [1983] 2 S.C.R.60). The legal question is whether, objectively, an implicit promise of confidentiality can be inferred from the circumstances. In other words, would the police conduct have led a person in the shoes of the potential informer to believe, on reasonable grounds, that his or her identity would be protected? Related to this, is there evidence from which it can reasonably be inferred that the potential informer believed that informer status was being or had been bestowed on him or her? An implicit promise of informer privilege may arise even if the police did not intend to confer that status or consider the person an informer, so long as the police conduct in all the circumstances could have created reasonable expectations of confidentiality.

5The above test has two components to it:

(1) Objectively, can an implicit promise of confidentiality be inferred from the circumstances? An implicit promise of informer privilege may arise even if the police did not intend to confer that status or consider the person an informer, so long as the police conduct in all the circumstances could have created reasonable expectations of confidentiality.

(2) Is there evidence from which it can be reasonably inferred that the potential informer believed that informer status was being or had been bestowed on him or her?

6The first part of the analysis engages the existence, or not, of an implicit promise of confidentiality, and whether conduct by the police created a reasonable expectation of confidentiality. The second part of the test looks to the potential informer’s understanding and belief that he or she is bestowed informer status.

7On the facts of this case, there are two peculiar aspects to the communication. First, the exchange was under four minutes and did not go beyond a basic communication of the caller’s observations. Second, the caller hung up and so there was never a chance to obtain the caller’s name. The phone number was recorded by 911 but when the police attempted to call it, 8 months after the call, the number was disconnected. There was no evidence of any efforts to obtain information from any phone company concerning the ownership of the phone number at the time of the call. The Court must therefore draw inferences from the evidence put before it insofar as it relates to the caller’s understanding and agreement, or not, to be a confidential informant.

8On the first question, the call to 911 in and of itself does not import the informant privilege in the way that Crime Stoppers would. Crown counsel described that fact as a neutral consideration. Both parties referred the Court to R v. Kaboni, 2010 ONCJ 91, to provide the court with an example where a 911 caller was not found to be protected by the confidential informant privilege.

9At no time in the exchange with the caller and 911 was there either an express acknowledgment or a denial of confidentiality by the police. There was no time for such an exchange. The only evidence before the Court is the audio of the call. It allows the Court to consider the quality of the exchange in those few minutes as well as its content. In the exchange that occurs between the caller and the 911 dispatcher, I find that in contrast to the intensifying fearful tone in the caller’s voice, which suggested a combination of panic and fear, the dispatcher is gentle and ultimately tries to calm the person down. From the point of view of the 911 dispatcher, his comments in response to the caller’s demeanour as he is talking, allow for the reasonable inference that the dispatcher was trying to reassure the caller. As the caller’s anxiety intensified, he was told that he was speaking to the police. Implicit in that statement was a promise of confidentiality.

10Turning to the second part of the test, from the perspective of the caller, on the evidence before me, the caller’s abrupt hang-up in response to the reassuring comment from the 911 dispatcher suggests one of three possibilities: a) he was in such a panic that he did not appreciate the police’s implicit promise of confidentiality; b) he did not believe that the police would treat him as a confidential informant or would protect his anonymity; or c) he did not turn his mind to what protection the police would extend to him and just ran away from the call. On any one of these explanations, what is clear from the totality of the way the caller approached the conversation and its flow in response to comments from the dispatcher was that he wished to remain anonymous and he wished to protect his identity. The surest way for him to do that was to hang up and discontinue all further communication.

11When I combine the caller’s wish to remain anonymous with the dispatcher’s comments and my finding that those comments reflected an implicit promise of confidentiality, I am satisfied on a balance of probabilities that in this particular instance, the call to 911 is protected by the confidential informant privilege and the Crown does not have to disclose either the audio or a transcript of the call to the defense.

12To be clear, to the extent that defense counsel relied extensively on Justice Trafford’s analysis in R v. Brown, [1999] O.J. No. 4870, for the court’s treatment of a witness’ fear the facts here are distinguishable. In that case, the factual matrix was significantly more complicated and ultimately, the judge in that had reasons not to believe the witnesses who were implicated. In this instance, the Court has a very limited factual matrix defined by the contents of the audio and the content and quality of that exchange. There is no express input from the caller. His intentions can only be inferred by his conduct, which on a balance of probabilities favours a finding of the informant privilege protection.

13I also wish to underscore that in my analysis and findings, my conclusion is not founded on just the element of fear in the caller’s voice. Rather, it is the totality of his interaction and the particular exchange that allows me to infer the existence of the confidential informant privilege. The reassurance by the dispatcher allows for the inference of an implicit promise of confidentiality. The caller’s conduct allows the Court to conclude on a balance of probabilities that he wished to remain anonymous and protect his identity.