Court File and Parties

COURT FILE NO.: CV-13-488015 DATE: 20170222 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: John Doe A, John Doe B and Jane Doe C AND: John Doe D, The Toronto Police Services Board, John Doe E, Her Majesty, the Queen, In Right of the Province of Ontario, John Doe F and John Doe G

BEFORE: Madam Justice F. Kristjanson

COUNSEL: Alan Honner, for the Plaintiffs No one appearing, for the Defendants

HEARD: February 15, 2017

Endorsement

[1] John Doe A. claims that, during a Crown attorney’s examination-in-chief in a criminal trial, a police witness revealed in open court his identity as a confidential police informer. As a result of the alleged breach of informer privilege, the plaintiff has brought an action against the police, the Crown, and his former criminal defence lawyers. The claim against the latter is that they did not object to the questions and answers regarding the plaintiff’s confidential informer status at the criminal trial. John Doe A. claims that he did not waive confidential informer privilege.

[2] In respect of his civil action against the police, Crown, and his former criminal defence lawyers, John Doe A. seeks a sealing order, publication ban, and an amendment to the pleadings substituting his initials for his name.

[3] I find that John Doe A. is a confidential police informer. As such, the court must take steps to protect information that might reveal his identity because the informer privilege rule is mandatory, subject only to the “innocence at stake” exception. A court does not have any discretion with regard to the privilege; it is under a duty to protect the informer's identity. Civil liability for breaches of informer privilege supports the values which led to the creation of the rule, and operates in tandem to support the protection of the identity of informers in the criminal justice system. Accountability in the civil system is part of the safety-net which is meant to protect informers from retribution and encourage cooperation by potential informers. Reducing or eliminating civil redress for damages associated with breaches of informer privilege by failing to protect the informant's identity is contrary to the public interest.

[4] As such, I direct an interim sealing order, an interim publication ban, and an order amending the style of cause in these proceedings as set out below. The interim orders apply to the pre-trial proceedings. Whether this decision will continue to apply at trial is a matter for the trial judge to determine.

The Facts

[5] John Doe A. has filed uncontested affidavit evidence that:

(1) His identity as a confidential informer was revealed in his criminal trial by a police officer, during the Crown attorney’s examination in chief. His defence counsel did not object to the questions and answers;

(2) Some of the people in attendance at the criminal trial were involved in organized criminal activity;

(3) He has received telephone threats calling him a “rat” or a “snitch” and has been warned to get out of the city, both in person and by telephone;

(4) In 2014 he was attacked by a group of men who assaulted him with a tire iron, addressing him as a “snitch”;

(5) After the acquittal, during a period of incarceration for another offence, other prisoners assaulted him and threatened him with death;

(6) He fears that, if his status as a former confidential informant is confirmed through media reporting of the civil case, assaults and threats will continue and escalate;

(7) Had he known that his status as a confidential informant would be revealed in public, he would not have formed a confidential informant relationship with the police; and

(8) The pleadings and various motion records filed in proceedings to date reveal:

(a) his name, his mother’s name, and his brother’s name,

(b) his address,

(c) his evidence about the time frame during which he was a confidential informant,

(d) his evidence as to some of the crimes he informed about, including homicides, importing drugs, firearms offences, and counterfeit currency offences, and

(e) his evidence that he received money and other benefits from the police in exchange for informing them of criminal activity.

[6] The defendants were served with the motion, but did not appear and took no position.

Discussion

[7] This case raises the difficult question of how to deal with breaches of informer privilege in the civil context, including how to balance the open court principle and freedom of the press with the protection of informer privilege. To this point, the case has been treated as one involving a discretionary publication ban.

[8] However, the Supreme Court of Canada in Named Person v. Vancouver Sun, 2007 SCC 43, [2007] 3 S.C.R. 253 held that it is mandatory, not discretionary, for judges to take steps to protect the identity of confidential informants. The informer privilege is non-discretionary and nearly absolute. Informer privilege is subject only to the narrow innocence at stake exception which is protected under s. 11(d) of the Canadian Charter of Rights and Freedoms, and applies only where the accused establishes that disclosing the informer’s identity is necessary to demonstrate the accused’s innocence.

[9] The Supreme Court in Named Person recognized the dual objectives of the informer privilege rule. The first objective is to protect those who act as informers from the possibility of retribution, given that the work of confidential informers is critical to police work and the criminal justice system as a whole. The second objective is to encourage cooperation by future potential informers by sending a signal that their identity will be protected (paras. 16, 18). The Court outlined the following critical factors relevant to informer privilege:

(1) “Informer privilege is of such importance that once found, courts are not entitled to balance the benefit enuring from the privilege against countervailing considerations [emphasis removed]”: at para. 19, quoting R. v. Leipert, , [1997] 1 S.C.R. 281, at para. 12;

(2) “[A] court does not have any discretion with regard to the privilege; a court is under a duty to protect the informer's identity. Indeed, the duty of a court not to breach the privilege is of the same nature as the duty of the police or the Crown”: at para. 21;

(3) “Informer privilege is a class privilege that always applies when it has been established that a confidential informer is present”: at para. 22;

(4) “Once it has been established that the privilege exists, the court is bound to apply the rule. It is the non-discretionary nature of the informer privilege rule which explains that the rule is referred to as ‘absolute’”: at para. 23;

(5) “[T]he privilege is ‘owned’ by both the Crown and the informer himself, so the Crown has no right to disclose the informer's identity”: at para. 23;

(6) “In addition to its absolute non-discretionary nature, the rule is extremely broad in its application. The rule applies to the identity of every informer: it applies when the informer is not present, where the informer is present, and even where the informer himself or herself is a witness”: at para. 26;

(7) “It applies in criminal and civil trials. The duty imposed to keep an informer's identity confidential applies to the police, to the Crown, to attorneys and to judges”: at para. 26; and

(8) “Any information which might tend to identify an informer is protected by the privilege. Thus the protection is not limited simply to the informer's name, but extends to any information that might lead to identification”: at para. 26.

[10] The Court held in Named Person, at para. 30:

Once a trial judge is satisfied that the privilege exists, a complete and total bar on any disclosure of the informer's identity applies. Outside the innocence at stake exception, the rule's protection is absolute. No case-by-case weighing of the justification for the privilege is permitted. All information which might tend to identify the informer is protected by the privilege, and neither the Crown nor the court has any discretion to disclose this information in any proceeding, at any time. [Emphasis added.]

[11] At the same time, our democratic society highly values the open court principle and freedom of expression as protected by s. 2(b) of the Charter. In Re Vancouver Sun, 2004 SCC 43, [2004] 2 S.C.R. 332, at para. 25, a majority of the Supreme Court of Canada explained the openness principle as follows:

Public access to the courts guarantees the integrity of judicial processes by demonstrating “that justice is administered in a non-arbitrary manner, according to the rule of law”. Openness is necessary to maintain the independence and impartiality of courts. It is integral to public confidence in the justice system and the public’s understanding of the administration of justice. Moreover, openness is a principal component of the legitimacy of the judicial process and why the parties and the public at large abide by the decisions of courts. [Citation omitted.]

[12] The ability of the media to access information about court proceedings, so that it can inform the public of what is transpiring in the courts, is essential to the open court principle: Canadian Broadcasting Corporation v. New Brunswick (Attorney General), , [1996] 3 S.C.R. 480, at paras. 24-25.

[13] The open court principle applies to all judicial proceedings. To ensure that requests to limit court openness are determined with due regard for the open court principle and the role the media plays in its effectiveness, requests for discretionary orders limiting public access to court proceedings are subject to the Dagenais/Mentuck test: R. v. Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442, at para. 32; Dagenais v. Canadian Broadcasting Corp, , [1994] 3 S.C.R. 835, at 878. The test now applies equally to any request for any discretionary order limiting public access to court proceedings. According to the Dagenais/Mentuck test, a limiting order such as a sealing order, publication ban, or order allowing the use of pseudonyms should not be made unless the party seeking it establishes through convincing evidence that:

1. such an order is necessary in order to prevent a serious risk to the proper administration of justice because reasonably alternative measures will not prevent the risk; and
2. the salutary effects of the publication ban outweigh the deleterious effects on the rights and interest of the parties and the public, including the effects on the right to free expression, the right of the accused to a fair and public trial, and the efficacy of the administration of justice.

[14] However, the Dagenais/Mentuck test applies only to exercises of discretionary authority by a trial judge to limit freedom of expression and the press during judicial proceedings. In the Named Person case, the Court held that the informer privilege rule does not provide a judge with a discretionary power to order a publication ban. Rather, the Court held, at para. 39, that:

The informer privilege rule is mandatory (subject only to the "innocence at stake" exception). To permit trial judges wide discretion in determining whether to protect informer privilege would undermine the purposes of the rule. Part of the rationale for a mandatory informer privilege rule is that it encourages would-be informers to come forward and report on crimes, safe in the knowledge that their identity will be protected. A rule that gave trial judges the power to decide on an ad hoc basis whether to protect informer privilege would create a significant disincentive for would-be informers to come forward, thereby eviscerating the usefulness of informer privilege and dealing a great blow to police investigations.

[15] I find this rationale equally applicable to civil cases litigating an alleged breach of informer privilege. Civil accountability for breaches of informer privilege supports the values which led to the creation of the informer privilege rule, and operate in tandem to support the protection of the identity of informers in the criminal justice system. Further damage may occur by virtue of public and media access to records and information where, as alleged here, the Crown, police, and defence counsel breached the privilege.

[16] A confidential informer should not be dissuaded from seeking accountability through the civil justice system due to an inconsistent protection of informer privilege as between civil and criminal proceedings. Commencing a lawsuit for damages relating to breach of informer privilege does not mean that the privilege is waived for all purposes. To hold otherwise would undermine the rationale and eliminate part of the safety-net which is meant to protect informers and encourage cooperation by potential informers. Reducing or eliminating civil redress for damages associated with breaches of informer privilege by failing to protect the informer’s identity is contrary to the public interest.

[17] In Named Person, the Court set out a procedure for dealing with claims of informer privilege by the subject of an extradition proceeding and, in particular, the use of in camera proceedings. The Court emphasized that the judge must accommodate the open court principle to the greatest extent possible without risking the breach of informer privilege.

[18] I must first determine whether the privilege exists. I am satisfied on a balance of probabilities, based on the evidence filed on this motion, that John Doe A. was a confidential informant and that the civil proceedings will necessarily involve consideration of his status and role as a confidential informant. This determination does not bind a trial judge, but I so find on the record filed with me.

[19] I am left with considering discretionary measures to protect the identity of the informant. The privilege is claimed not to keep the information out of the hands of the parties, which is necessary for the purposes of adjudicating the civil claim, but rather to prevent the media and potentially dangerous persons from accessing information relating to his activities as a police informant. At the same time, I must make every effort to ensure that as much information as possible is made public and that disclosure and publication are restricted only for information which might tend to reveal the informer’s identity: Named Person, at para. 42.

[20] John Doe A. seeks a publication ban, sealing order, and amendment of the claim to proceed using pseudonyms to protect the informer privilege, the public interest in law enforcement, and the right to seek legal redress from the Courts. In applying a modified Dagenais/Mentuck approach to the discretionary question of which remedies are required, I find that an order protecting the informer’s identity, or information which reasonably relates to his identity, is necessary to prevent risk to the administration of justice, given the profound importance of informer privilege. As the Supreme Court recognized in Leipert, at p. 293, “[i]nformer privilege prevents not only disclosure the name of the informant, but of any information which might implicitly reveal his or her identity. Courts have acknowledged that the smallest details may be sufficient to reveal identity.”

[21] A modified second step requires me to consider minimal impairment of the open court principle and freedom of the press at this stage of the proceeding. I note that informer privilege is of such importance that, once found, courts are not entitled to balance the benefit enuring from the privilege against countervailing considerations and the court does not possess discretion to abridge it: Leipert, at pp. 291-292. However, the remedial options may change as a case progresses. Whether or not some testimony will proceed in camera, for example, will be a decision of the trial judge.

[22] For that reason, I direct the issuance of interim orders, applicable to pre-trial proceedings. I order that:

(1) an interim sealing order be placed on the file;

(2) an interim publication ban is imposed, which is limited to the name of the informant and any information which might implicitly reveal his identity; and

(3) the pleadings in this matter be amended so that the plaintiff and his brother and mother may be identified through initials rather than by name.

[23] The interim sealing order and publication ban will apply to pre-trial proceedings, including motions, which will continue unless and until varied by the trial judge. Whether this decision will continue to apply at the trial is a matter for the trial judge to determine.

Notice to the Media

[24] John Doe A. brought his motion pursuant to section 137(2) of the Courts of Justice Act and Part V, Section F (Publication Bans) of the Ontario Superior Court’s Consolidated Provincial Practice Direction, which came into effect on July 1, 2016. The Practice Direction establishes the default procedure to be followed when a party seeks a discretionary publication ban in any civil, criminal, or family proceeding in the Superior Court of Justice or in a proceeding in the Divisional Court. The motion must be brought by way of Notice of Motion or Application. The Practice Direction provides, at para. 107:

Unless otherwise directed by a judge, the person seeking the publication ban (the requesting party) must provide notice to the media of the motion /application, using the procedure set out in this section.

[25] John Doe A. submitted a “Notice of Request for Publication Ban” form, which is available on the Superior Court of Justice website, and no media responded to the Notice.

[26] As set out above, a publication ban in respect of the identity of a confidential informer is not a discretionary publication ban. It is a mandatory publication ban. The Practice Direction does not apply, and the Dagenais/Mentuck test does not apply. In cases involving informer privilege, there is no requirement to give notice to the media in accordance with the Practice Direction. The Supreme Court in Named Person addressed the issue of media notice involving cases of informer privilege in the context of in camera evidentiary proceedings. A similar approach will likely have to be adapted for civil proceedings involving informer privilege, but since media notice was already given in this case, I need not decide that issue.

[27] Counsel for John Doe A. and the other parties are to serve and file their amended, anonymized pleadings within thirty days.

Kristjanson J. Date: February 22, 2017