Court File and Parties

COURT FILE NO.: 17-13302 DATE: 2018/08/24

[REDACTED DECISION]

ONTARIO SUPERIOR COURT OF JUSTICE EAST REGION

IN THE MATTER OF the Competition Act, R.S.C., 1985, c. C-34;

AND IN THE MATTER OF an inquiry under section 10 of the Competition Act, concerning alleged activities of Canada Bread Company, Limited (“Canada Bread”); Weston Foods (Canada), Incorporated (“Weston Bakeries”); Loblaw Companies Limited (“LCL”); WalMart Canada Corporation (“Walmart”); Sobeys Incorporated (“Sobeys”); Metro Incorporated (“Metro”); Giant Tiger Stores Limited (“Giant Tiger”) and other persons known and unknown, contrary to paragraphs 45(1)(b) and (c) of the Competition Act (as it existed in the period 2001-2010) and paragraph 45(1)(a) of the Competition Act (as amended in 2010);

AND IN THE MATTER OF an ex parte application by Immunity Applicant Witnesses 1 and 2 for a declaration that they are confidential informers entitled to the protection of informer privilege;

BETWEEN:

SOBEYS INCORPORATED and METRO INCORPORATED Applicants – and – THE COMMISSIONER OF COMPETITION Respondent on this Application – and – IMMUNITY APPLICANT WITNESSES 1 AND 2 Applicants on this Application – and – THE GLOBE AND MAIL INC., THE CANADIAN BROADCASTING CORPORATION, POSTMEDIA NETWORK INC. and CTV NEWS, A DIVISION OF BELL MEDIA INC. Interveners

Counsel: Gary Caracciolo and Marisa Ferraiuolo, Public Prosecution Service of Canada, Competition Law Section, for the Respondent on this Application Robert S. Russell, Davit Akman, Danielle Ridout and Katie Archibald, for the Applicants on this Application

HEARD: April 18, April 25, May 8, May 9, June 25 and June 28, 2018

Reasons For decision REgarding Immunity Applicant Witnesses as informer privilege claimants on first stage hearing

RATUSHNY J.

1. Overview

1The applicants (“Witness 1” and “Witness 2”, and collectively, the “Immunity Applicant Witnesses”) have requested a declaration that they are confidential informers entitled to the protection of informer privilege.

2Their request arises in the context of two of the respondents, Sobeys Incorporated (“Sobeys”) and Metro Incorporated (“Metro”), commencing applications for orders requiring the Commissioner of Competition (the “Commissioner”) to disclose their identities that are presently redacted from informations to obtain, resulting in search warrants executed against the respondents’ premises.

3The larger context is an ongoing inquiry by the Competition Bureau (the “Bureau”) under section 10 of the Competition Act, R.S.C., 1985, c. C-34 (the “Act”) into an alleged conspiracy to fix the prices of fresh commercial bread in Canada, contrary to section 45 of the Act. The Bureau, headed by the Commissioner, alleges that Loblaw Companies Limited (“LCL”) and Weston Foods (Canada) Incorporated, a subsidiary of George Weston Limited (“GWL”) (collectively with GWL, the “Immunity Applicant”) participated in a conspiracy with retailers and a supplier to fix the wholesale and retail prices of fresh commercial bread in Canada between November 2001, and October 31, 2017.

4When the Immunity Applicant discovered its involvement in the alleged criminal conspiracy offence of price fixing, an indictable offence punishable by a fine of up to $25 million, imprisonment for up to 14 years, or both, it applied for immunity to the Bureau on its own behalf and on behalf of its respective current officers, director, and employees. It was granted immunity under the Bureau’s Immunity Program (the “Immunity Program”, or the “Program”) in respect of that criminal conspiracy offence. Witnesses 1 and 2 are part of the Immunity Program and a form of immunity agreement.

5No charges have been laid and the inquiry could continue for a number of years.

6In accordance with the procedure mandated by the Supreme Court of Canada in Named Person v. Vancouver Sun, 2007 SCC 43, [2007] 3 S.C.R. 253, at paras. 45-47 and 49, for claims of informer privilege, a “first stage” ex parte and in camera hearing was held to determine whether the Immunity Applicant Witnesses are confidential informers entitled to the protection of the privilege. Also, in accordance with that same procedure, the applications by Sobeys and Metro were adjourned sine die without explanation able to be given, and only the Commissioner and the Immunity Applicant Witnesses were parties to the hearing. Neither Witness 1 nor Witness 2 knows the identity of the other.

7If found to be confidential informers entitled to informer privilege, with its near absolute bar on disclosure of identity, the Immunity Applicant Witnesses accordingly request that the Sobeys and Metro applications be dismissed.

8The Commissioner opposes this application by the Immunity Applicant Witnesses, submitting that applying informer privilege would compromise the operation of the Immunity Program, and in turn, anti-cartel enforcement in Canada. The Commissioner further asserts that denying the informer privilege claim would present little risk to the Program as it already contains ample incentives for cooperation with law enforcement, including adequate safeguards for confidentiality.

9I have concluded from the evidence that:

1. Informer Privilege Applies - Beginning at the time of their initial relationship with the Bureau, and their providing information for the purpose of participating in the Immunity Program, the Immunity Applicant Witnesses became confidential informants protected by informer privilege as a matter of law;
2. Waiver of Informer Privilege Regarding Testifying - Also beginning at the time of their initial relationship with the Bureau in connection with the Immunity Program and continuing to the present time, the Immunity Applicant Witnesses have always clearly understood that they may have to testify at a future trial where their identity may be revealed. Together with this understanding, they provided information and then later signed documents agreeing to testify and to other conditions of the Program. In the well-known, well-documented, well-managed, and sophisticated circumstances of the Immunity Program, I have concluded that their agreement to testify is a clear, express, and informed future waiver of informer privilege for the purpose of testifying at a trial at such later date as may be designated by the Director of Public Prosecutions of Canada (the “DPP”), or the Commissioner. In other words, I have found that informer privilege continues to protect the identities of the Immunity Applicant Witnesses at this time, and their waiver applies at that later time and to that later contingency;
3. No Present Waiver of Informer Privilege - There has been no waiver of informer privilege by the Immunity Applicant Witnesses that is effective at the present time.

10My reasons follow.

2. Informer Privilege

11The parties agree on the law governing informer privilege. It has been well summarized by them.

12Informer privilege arises where a police officer, in the course of an investigation, guarantees protection and confidentiality to a prospective informer in exchange for useful information that would otherwise be difficult or impossible to obtain: R. v. Basi, 2009 SCC 52, [2009] 3 S.C.R. 389, at para. 36. This promise can be express or implicit: R. v. Barros, 2011 SCC 51, [2011] 3 S.C.R. 368, at para. 31. Informer privilege can also apply where a party provides information to a state agent other than a police officer: A. v. Drapeau, 2012 NBCA 73, 393 N.B.R. (2d) 76, at para. 20.

13It creates a near absolute bar on revealing the name of the informer, as well as any information which might implicitly reveal their or her identity: R. v. Leipert, [1997] 1 S.C.R. 281, at para. 18.

14It is a class privilege: R. v. National Post, 2010 SCC 16, [2010] 1 S.C.R. 477, at para. 42. Once a court finds that the privilege applies, it cannot exercise discretion regarding its application. In other words, the court cannot balance informer privilege against other interests: Named Person v. Vancouver Sun, 2007 SCC 43, [2007] 3 S.C.R. 253, at paras. 22-23. Informer privilege is of such importance that once found, courts are not entitled to balance the benefit ensuing from the privilege against countervailing considerations: Leipert, at para. 12. The only exception is where an accused’s innocence is at stake: Basi, at para. 37.

15There is no disagreement in the present case that the innocence at stake exception is not applicable. No charges have been laid, and accordingly, there is no accused person at this stage of the investigation.

16In dealing with solicitor-client privilege, the Supreme Court described class privileges in R. v. McClure, 2001 SCC 14, [2001] 1 S.C.R. 445, at paras. 26-28, as follows:

The law recognizes a number of communications as worthy of confidentiality. The protection of these communications serves a public interest and they are generally referred to as privileged. (at para. 26)

There are currently two recognized categories of privilege: relationships that are protected by a “class” privilege and relationships that are not protected by a class privilege but may still be protected on a “case-by-case” basis. See R. v. Gruenke, [1991] 2 S.C.R. 263, per Lamer C.J., at p. 286, for a description of “class privilege”. (at para. 27)

For a relationship to be protected by a class privilege, thereby warranting a prima facie presumption of inadmissibility, the relationship must fall within a traditionally protected class. Solicitor-client privilege, because of its unique position in our legal fabric, is the most notable example of a class privilege. Other examples of class privileges are spousal privilege…and informer privilege (which is a subset of public interest immunity). (at para. 28)

17The privilege attaches immediately when the confidential information is provided. If it does not attach at the beginning of the process, the protection it provides would be illusory and could be lost – a result that would be absurd: Descoteaux v. Mierzwinski, [1982] 1 S.C.R. 860, at para. 57 (dealing with solicitor-client privilege).

18Informer privilege was created and is enforced as a matter of public interest rather than contract: Barros, at para. 32.

19Informer privilege is “owned” by both the Crown and the informer. Neither party can unilaterally waive it: Leipert, at para. 15; Named Person v. Vancouver Sun, 2007 SCC 43, [2007] 3 S.C.R. 253, at para. 25. Given the sacrosanct nature of informer privilege, it is questionable whether there is any basis for the operation of the notion of a deemed or implicit waiver. A waiver must be clear, express, and informed: R. v. Schertzer, [2008] O.J. No. 245 (S.C.), at para. 8.

20Informer privilege is “an ancient and hallowed protection which plays a vital role in law enforcement”, and is “of fundamental importance to the workings of a criminal justice system”. It should be respected scrupulously: Leipert, at paras 9-11 and 18.

21The rationale for informer privilege is two-fold: it protects citizens who assist law enforcement and encourages others to do the same: Leipert, at para. 15.

22The courts have recognized that informers play a critical role in the investigation of crime and the apprehension of criminals. This public interest component of informer privilege is described by the Supreme Court of Canada in R. v. Durham Regional Crime Stoppers Inc., 2017 SCC 45, [2017] 2 S.C.R. 157, at para. 12, as follows:

As with all privileges, informer privilege is granted in the public interest. Informers pass on useful information to the police, which may otherwise be difficult or even impossible to obtain. They thus play a critical role in the investigation of crime and the apprehension of criminals. The police and the criminal justice system rely on informers – and society as a whole benefits from their assistance. In fulfilling this important role, informers often face the risk of retribution from those involved in criminal activity. Accordingly, informer privilege was developed to protect the identity of citizens who provide information to law enforcement. By protecting those who assist the police in this manner – and encouraging others to do the same – the privilege furthers the interests of justice and the maintenance of public order. [Citations omitted.]

23The Court went on to warn against extending informer privilege too far:

The scope of informer privilege is limited by its underlying rationales. As Binnie J. Noted in Barros, “it is important not to extend [the privilege’s] scope beyond what is necessary to achieve its purpose of protecting informers and encouraging individuals with knowledge of criminal activities to come forward to speak to the authorities”: para. 28. In other words, informer privilege cannot be interpreted to apply where it would compromise the very objectives that justify its existence: Durham, at para. 17.

24In Named Person v. Vancouver Sun, 2007 SCC 43, [2007] 3 S.C.R. 253, at para. 18, the Court described the underlying rationales in these terms:

Not only does the ban on revealing the informer’s identity protect that informer from possible retribution, it also sends a signal to potential informers that their identity too, will be protected. Without taking away from the particular protection afforded by the rule to an individual informer in a given case, we must emphasize the general protection afforded by the rule to all informers, past and present.

25The privilege is not confined to violent crimes, but is available in respect of all criminal matters including economic crimes such as corruption, fraud, and breach of trust: Basi, at para. 6.

26The Supreme Court of Canada has found the privilege arising in three circumstances.

27In Basi, it arose where a police officer, in the course of an investigation, guaranteed protection and confidentiality to a prospective informer in exchange for useful information that would otherwise have been difficult or impossible to obtain.

28In Leipert, at para. 16, it found the privilege arose in respect of Crime Stoppers, a program that exists to provide members of the public the opportunity to provide information to the police in confidence.

29In R. v. Named Person B., 2013 SCC 9, [2013] 1 S.C.R. 405, the privilege was found to arise by way of an implicit promise of confidentiality that could be inferred from the circumstances. The Court described the relevant legal question at para. 18, as follows:

…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?

30Also, in Named Person B., the Supreme Court confirmed at para. 43, that testimony is not a bar to informer privilege:

…while informers typically waive privilege when they agree to testify, nothing prevents them from keeping their privilege until there is a firm decision to testify by both the informer and the prosecution.

31Cromwell J., in dissent in Named Person B., noted the practical problems that arise when an informer must testify, at para. 140:

As a practical matter, unless both the Crown and the witness agree to renounce it, informer privilege must be seen as barring, for all practical purposes, the Crown from calling an informer to testify at trial about the very information provided to the police in confidence. The two roles are almost invariably incompatible. Of course, a potential witness would fully understand this as it will generally be obvious that the testimony will reveal the source of the information.

32The interaction triggering the privilege can be brief, with no discussion of confidentiality at all, such as in R. v. Nguyen, 2016 ONSC 775, at paras. 1, 9-11, where the privilege was found to have arisen from a brief 911 call. The Court found that the anonymous caller’s panicked tone implied a request for confidentiality and the operator’s calming demeanour implied a promise that the caller’s identity would be kept confidential. The only evidence of the interaction was the brief 911 call reporting that the caller saw a male holding a handgun, and on being advised he was speaking to the police, he hung up.

3. The Immunity Program

33I review the Immunity Program and its process because it governs the relationship and the “bargain” between the Bureau and the Immunity Applicant Witnesses.

An Important Tool

34Konrad Von Finckenstein, a former Commissioner, and Simon Bessette, a senior competition law officer and co-lead in the present inquiry, each testified and confirmed that the Immunity Program is one of the most important tools used by the Bureau to uncover and stop criminal anti-competitive activity prohibited by the Act.

35It is not in dispute that the Immunity Program is Bureau policy and not law, or that the Bureau serves in the role of the police as a crime investigation and law enforcement agency, or that the Program is one of its most important tools in providing useful information and evidence that would otherwise be difficult or impossible for the Bureau to obtain.

36The Immunity Program was formally begun by the Bureau in 2000 during Mr. Von Finckenstein’s tenure as Commissioner. It has undergone certain reviews and adjustments since its inception, but its essential elements of confidentiality and earned immunity have remained constant.

37The current version of the Program is characterized in the preface to a 2010 Bulletin (the “2010 Bulletin”) published by the Bureau as:

… the Bureau’s single most powerful means of detecting criminal activity. Its contribution to effective enforcement is unmatched. Its continued appeal to those who would otherwise remain undercover is pivotal to our enforcement efforts.

38The preface to the 2010 Bulletin also states that the Bureau’s goal in creating and maintaining its Immunity Program is to “uncover and stop criminal anti-competitive activity prohibited by the [Act] and to deter others from engaging in similar behaviour.”

The Immunity Program Process

39The Immunity Program process is described in a Public Prosecution Service of Canada (“PPSC”) desk book as comprising five steps: (1) marker; (2) proffer; (3) recommendation; (4) agreement; and (5) full disclosure and cooperation. The Immunity Applicant and the Immunity Applicant Witnesses have successfully completed these steps to date and the fifth step is ongoing.

40The marker step is when an individual or corporation contacts the Bureau and provides a limited hypothetical disclosure of information that identifies the nature of the criminal offences it has committed contrary to the Act in respect of a specified product. It then, as an immunity applicant, receives a “marker” which holds its place in line to seek immunity from prosecution. The Immunity Applicant was granted a marker on March 3, 2015.

41The proffer step is when an immunity applicant voluntarily provides a detailed and often hypothetical description of the illegal activity on a without prejudice basis.

42The recommendation step is achieved if the Bureau is satisfied that an immunity applicant fulfills the requirements of the Immunity Program and is prepared to cooperate fully in order to allow the Bureau to recommend the applicant for immunity to the DPP. The DPP is the only authority able to grant immunity.

43The agreement step is achieved after an independent review is conducted by the DPP. If it accepts the Bureau’s recommendation, it will execute an immunity agreement with the applicant.

44There is a form of immunity agreement (the “Form of Immunity Agreement”) in place with the corporate Immunity Applicant, and the Immunity Applicant Witnesses have each signed a form of acknowledgment (the “Form of Immunity Agreement Acknowledgment”) whereby they each acknowledge “full and voluntary acceptance of the terms and conditions of the [Form of Immunity Agreement] pertaining to individuals, and agree to be bound by them.” The Form of Immunity Agreement with the corporate Immunity Applicant is attached to each Form of Immunity Agreement Acknowledgment from the Immunity Applicant Witnesses.

45The full disclosure and cooperation step requires the applicant to provide the Bureau with continuing full disclosure of non-privileged information, evidence, and records relating to the anti-competitive conduct. For the corporate Immunity Applicant, as applicable in the present case, its current and former directors, officers, and employees may be required to appear for interviews and to testify in judicial proceedings in connection with the anti-competitive conduct. The Bureau will not use the information against an applicant unless they fail to comply with the immunity agreement.

46Each of the Immunity Applicant Witnesses have provided full disclosure and cooperation to date and appeared for an interview with the Bureau, referred to as the Queen-For-A-Day interview (the “QFD Interview”). This QFD Interview occurred prior to the recommendation and the agreement step as it applied to them.

Essential Elements of the Program

47The essential elements of the Program, at least for the purposes of the present issues and as described in the 2010 Bulletin and carried forward in the Form of Immunity Agreement, are obligations and promises of confidentiality applying to both the Bureau and to the applicant, together with a promise of immunity from prosecution for the applicant should the Program’s conditions, including full disclosure of information, be met.

Confidentiality as Described in the 2010 Bulletin

48Paragraph 31 of the 2010 Bulletin (largely repeated in paragraph 7 of the Form of Immunity Agreement – see below) indicates the Bureau treats as confidential the identity of a party requesting immunity, with “exceptions” as enumerated, including in (d) “the party has agreed to disclosure”.

Confidentiality Obligations under the Act

49The Program’s essential element of confidentiality of identity is statutorily mandated for the Commissioner and the Bureau in carrying out all their duties under the Act, in sections 10(3), 29 and 66.1:

Inquiries to be in private

10(3) All inquiries under this section shall be conducted in private.

Confidentiality

29(1) No person who performs or has performed duties or functions in the administration or enforcement of this Act shall communicate or allow to be communicated to any other person except to a Canadian law enforcement agency or for the purposes of the administration or enforcement of this Act

(a) the identity of any person from whom information was obtained pursuant to this Act;

(b) any information obtained pursuant to section 11, 15, 16 or 114;

(c) whether notice has been given or information supplied in respect of a particular proposed transaction under section 114;

(d) any information obtained from a person requesting a certificate under section 102; or

(e) any information provided voluntarily pursuant to this Act.

Exception

(2) This section does not apply in respect of any information that has been made public or any information the communication of which was authorized by the person who provided the information.

Whistleblowing

66.1(1) Any person who has reasonable grounds to believe that a person has committed or intends to commit an offence under the Act, may notify the Commissioner of the particulars of the matter and may request that his or her identity be kept confidential with respect to the notification.

Confidentiality

(2) The Commissioner shall keep confidential the identity of a person who has notified the Commissioner under subsection (1) and to whom an assurance of confidentiality has been provided by any person who performs duties or functions in the administration or enforcement of this Act.

50Section 10(3) of the Act requires the Commissioner to conduct all of his inquiries in private, whether they are civil or criminal. That privacy obligation does not apply once a matter goes to court: Canada (Director of Investigation & Research) v. Southam Inc., [1991] 38 CPR (3d) (Comp. Trib.), at paras. 4-5.

51Section 29 of the Act prohibits the Commissioner from disclosing the identities of the witness or the immunity applicant. However, this prohibition does not apply if their information becomes public or if either authorize disclosure of that information.

52Section 66.1 of the Act protects the identity of whistleblowers who request the Bureau to keep their identity confidential.

53It is not in dispute that the Immunity Applicant Witnesses came forward via a corporate immunity application by the Immunity Applicant and not as whistleblowers adverse in interest to the Immunity Applicant.

Confidentiality Obligations in the Documents Applying to the Immunity Applicant Witnesses and According to their Testimony

54The Program’s essential element of confidentiality is also reflected in the documents applying to the Immunity Applicant Witnesses in respect of their involvement in the different steps of the Immunity Program, and also in their testimony at the hearing. These documents and their testimony are summarized as follows:

[Heading Redacted pursuant to an Order of this Court dated October 23, 2018]

55[Redacted pursuant to an Order of this Court dated October 23, 2018]

56Witness 2 testified they were similarly informed over the course of the [Redacted pursuant to an Order of this Court dated October 23, 2018] meetings they had with counsel for the Immunity Applicant.

57Witnesses 1 and 2 each testified that these interviews with counsel occurred before their QFD Interview. At their meetings with counsel, each said they provided full disclosure to counsel for the Immunity Applicant on the understanding and agreement that they themselves were bound to maintain absolute confidentiality. Witness 1 and 2 understood and agreed that their disclosure was pursuant to the Immunity Program, and that so long as they fully cooperated they would have immunity and their identity would not be disclosed. Witness 1 and 2, however, also understood and agreed that there was a chance the case would go to trial, and in such circumstance they would have to testify and their identities might then be disclosed.

Form of QFD Immunity Agreement

58Before their QFD Interview, each of the Immunity Applicant Witnesses signed a Form of QFD Immunity Agreement with the DPP, whereby the DPP agreed that no statement or information from each of the Immunity Applicant Witnesses during the interview would be used directly against them in any legal proceeding brought by the DPP, with exceptions listed that need not be detailed at this time.

Form of KGB Acknowledgment

59Before their QFD Interview, each of the Immunity Applicant Witnesses also signed a Form of KGB Acknowledgment indicating they were agreeing to give their statement to the Bureau under oath; that the DPP had granted them certain protections in regard to their statement; that they understood the consequences of making a false statement; and that they “may be a witness at a trial concerning the events [they] describe in [the] statement and, if at that time [they] change any part of [their] statement or claim any part of it to be false, the statement can and will be used at that trial”.

Form of Immunity Agreement

60The final documents applying to the Immunity Applicant Witnesses’ journey to date under the Immunity Program is each Form of Immunity Agreement Acknowledgment. The terms of the Form of Immunity Agreement Acknowledgement reference and also append the 2010 Bulletin describing the Immunity Program, as well as the Form of Immunity Agreement with the corporate Immunity Applicant. Each of the Immunity Applicant Witnesses agreed to be governed by the Form of Immunity Agreement terms and conditions pertaining to individuals.

61The Form of Immunity Agreement is between the DPP and the Immunity Applicant, with the Commissioner also signing to give effect to his rights and obligations as expressed in the Form of Immunity Agreement. The Form of Immunity Agreement has detailed clauses governing cooperation and disclosure (paragraph 3), immunity (paragraphs 4 and 5), revocation of immunity (paragraphs 6, 12, 13, 14, 15, 16), confidentiality of identity (paragraph 7), confidentiality of information (paragraph 8), privilege (paragraph 18), and entire agreement (paragraph 20).

62The following paragraphs in the Form of Immunity Agreement are most relevant to the issues of informer privilege and waiver: paragraphs 5, 7, 11, 15 and 18(a).

63Paragraph 5 of the Form of Immunity Agreement sets out conditions regarding the granting of immunity to the Immunity Applicant Witnesses as being conditional on their continuing disclosure and cooperation with the DPP and the Commissioner:

5. Immunity of Individuals Covered by Corporate Immunity Agreement: Subject to the veracity of the representations contained in paragraph 2, the DPP grants the individuals immunity from prosecution under the Act in respect of the anticompetitive conduct conditional on their admission of their knowledge of and participation in the anticompetitive conduct and on their continuing disclosure and cooperation with the DPP and the Commissioner. Such disclosure and cooperation shall include, but not be limited to:

a) providing all non-privileged, information, evidence and records (including personal records), known to them, in their possession, under their control or available to them, wherever located, whether or not requested by the DPP or the Commissioner, and that in any manner relate to the anticompetitive conduct, without falsely implicating any person or withholding any information. Before providing the information, evidence and records, individuals covered by this agreement will consult with the Commissioner with respect to the relevance and scope of such information, evidence and records and the form in which such information, evidence and records will be provided to the Commissioner;

b) making themselves available in Canada for interviews and to testify in judicial proceedings at times and places designated by the DPP or the Commissioner; and

c) revealing any and all conduct which may constitute an offence under the Act.

64Paragraph 7 of the Form of Immunity Agreement deals with their confidentiality of identity:

7. Confidentiality of Identity: The DPP and the Commissioner shall not disclose to any third party the identity of or the individuals covered by this agreement, except to the extent that:

a) disclosure is required by law, including:

i. in response to an order of a Canadian court of competent jurisdiction;

ii. to a person charged with an offence in Canada;

b) disclosure is necessary to obtain or maintain the validity of a judicial authorization for the exercise of investigative powers;

c) disclosure is necessary for the purpose of securing the assistance of a Canadian law enforcement agency in the exercise of investigative powers;

d) has agreed to disclosure;

e) there has been disclosure by; or

f) disclosure is necessary to prevent the commission of a serious criminal offence.

65Paragraph 11 of the Form of Immunity Agreement indicates there is to be resistance to disclosure of confidential information:

11. Notice of Disclosure to Third Parties: If any third party seeks to compel disclosure of confidential information from any party to this agreement, or any individual, that party or individual shall give prompt notice to the parties to this agreement, and shall take all reasonable steps to resist disclosure unless the parties to this agreement consent to such disclosure.

66Paragraph 15 of the Form of Immunity Agreement speaks of a deemed waiver upon revocation of immunity:

15. Impact of Revocation of Immunity: Following revocation of immunity for a breach of this agreement, as described in paragraphs 12 through 14 above, the DPP may take such action against the person whose immunity has been revoked as the DPP considers appropriate, including prosecution under the Act or the Criminal Code of Canada. In any such action the DPP may use, in any way, any information, evidence, record, statement or testimony provided by any person at any time after the application for immunity and any evidence of any kind derived directly or indirectly from such information, evidence, record, statement or testimony provided. For greater certainty, any privilege that may apply in respect of any information, evidence, record, statement or testimony provided is deemed waived upon revocation of immunity.

67Paragraph 18(a) of the Form of Immunity Agreement speaks of there being no waiver of any privilege:

18. Privilege and Jurisdiction: Nothing in this agreement, or any action taken pursuant to it, shall constitute:

a) except for the deemed waiver mentioned in paragraph 15, a waiver of any privilege, by any party to this agreement.

4. Testimony of the Immunity Applicant Witnesses and Mr. Bessette Regarding Confidentiality

68Each of the Immunity Applicant Witnesses testified that as a result of their discussions with counsel for the Immunity Applicant, assurances regarding the confidentiality of their identity were provided as constituting an important element of the Immunity Program. Witness 1 testified this was their understanding “from the beginning of the process”. Witness 2 testified this was their understanding “in deciding to participate”.

69Mr. Bessette confirmed in his testimony that the assurance and expectation of confidentiality occurs at the beginning of the process.

70Each of the Immunity Applicant Witnesses testified about their concerns if their identity were disclosed.

71Witness 1 testified that they are concerned about their family’s safety, their relationship with their family, their ability to pursue business interests, and possible financial repercussions if their identity were to be disclosed.

72Witness 2 testified that they are concerned about [Redacted pursuant to an Order of this Court dated October 23, 2018] and pursue professional opportunities, their reputation [Redacted pursuant to an Order of this Court dated October 23, 2018], their relationships with people in their community, and potential financial repercussions if their name came out. Witness 2 further testified that physical safety is not their primary concern.

73[Redacted pursuant to an Order of this Court dated October 23, 2018]

74They also testified about their understanding of confidentiality. Some of this testimony has been already been reviewed above.

75Both witnesses said they understood they might be required to testify at a trial where their identity might be disclosed, but that would probably not occur for some time, if at all, as counsel for the Immunity Applicant informed them that many of these cases settle out of court.

76Witness 1 testified that confidentiality of their identity was particularly important to them and they understood their identity would be revealed in certain circumstances, like during testimony, and that testifying during trial would not be a choice. Witness 1 said that nothing during the QFD Interview changed their mind about the Bureau’s confidentiality obligation towards them.

77Mr. Bessette testified that in the QFD Interview, Witness 1 did not mention concerns about keeping their identity confidential, risks associated with disclosure of their identity, or whether or not they would testify as a witness.

78Witness 2 testified that the QFD Interview was “very private” and it felt to them that “everything was done, along, you know, throughout the process, was to keep my identity confidential”. Witness 2 understood the agreement with the Bureau to be such that as long as they cooperated, they would have immunity and their identity would not be disclosed. Witness 2 understood they would not be anonymous if required to testify.

79Mr. Bessette testified that in the QFD Interview, Witness 2 did not mention the risks associated with disclosure of their identity, whether or not they would testify as a witness, or any concerns regarding the confidentiality of the information they had provided to the Bureau.

80Mr. Bessette testified as to the standard procedures accompanying each QFD Interview, all designed to maintain anonymity for Witness 1 and Witness 2.

5. The Arguments of the Parties

81I have summarized each party’s primary arguments as follows.

The Immunity Applicant Witnesses - The Privilege Applies

82The Immunity Applicant Witnesses assert they are confidential informers protected by informer privilege because of the express and broad assurances of confidentiality given by the Bureau under the Immunity Program in exchange for the “formidable commitment by the applicant to address illegal wrongdoing and to fully support the [Bureau] and the Crown in investigating and prosecuting others implicated in the illegal activity”. They say the privilege applied from the time they provided their information to the Bureau through the Immunity Program and continues to apply notwithstanding their agreement to testify.

The Commissioner - Only Qualified Promises of Confidentiality so as to Protect the Operation of the Immunity Program

83The Commissioner characterizes this case as deciding whether the Immunity Program operates to extend informer privilege to cooperating parties, and comments that the impact of this court’s decision will be wide-ranging since the Program is the Bureau’s primary tool for detecting cartels.

84The Commissioner asserts no informer privilege has attached to the information provided by the Immunity Applicant Witnesses because the Bureau has neither explicitly or implicitly granted informer privilege status to them. Instead, the Bureau has only provided them with a qualified promise of confidentiality in exchange for their cooperation with the investigation and any subsequent prosecution, together with a grant of immunity under the Immunity Program, all of which, the Commissioner submits, is consistent with the public interest in robust anti-cartel enforcement.

85The Commissioner argues that to grant the application would constitute an over-extension of informer privilege and would compromise the operation of the Immunity Program, which, in turn, would be contrary to the public interest in effective criminal law enforcement. To refuse the application would have a less chilling effect on the Program, he submits, because its efficacy does not depend exclusively on providing immunity applicants with a total guarantee of anonymity. Instead, immunity from prosecution combined with qualified confidentiality assurances motivate applicants, including the Immunity Applicant Witnesses, to come forward.

86The Commissioner submits that not everyone who provides confidential information to the Bureau is entitled to the privilege, and that confidentiality and informer privilege are not the same: R. v. Brown (1999), 74 C.R.R. (2d) 164 (Ont. S.C.)), at para. 5. He argues that the Immunity Applicant Witnesses are more than just “tipsters” to a Crime Stoppers or Border Watch Line, as those tipsters, typically confidential informants protected by the privilege, have no cooperation obligation like that which the Immunity Applicant Witnesses have under the Immunity Program.

87In the circumstances surrounding the Immunity Applicant Witnesses’ provision of information and the nature of the confidentiality assurances given to them, including in the Form of QFD Immunity Agreement, the Form of Immunity Agreement, and the Form of Immunity Agreement Acknowledgment (collectively, the “Documents”), the Commissioner submits it has been expressly specified when the DPP and the Commissioner, acting unilaterally, can disclose the identity of the Immunity Applicant Witnesses, and the Immunity Applicant Witnesses have agreed to all of these terms. These terms, for example, include “their continuing disclosure and cooperation”, and “to testify in judicial proceedings at times and places designated by the DPP or the Commissioner”, as set out in paragraph 5 (above) of the Form of Immunity Agreement.

88The Commissioner submits that the Form of Immunity Agreement’s vital conditions of continuing disclosure and cooperation, including testifying at a trial, would be completely unenforceable if the Immunity Applicant Witnesses are protected by informer privilege.

89The result, the Commissioner submits, is that the Bureau did not expressly grant informer privilege to the Immunity Applicant Witnesses in the Documents. Instead, it provided them with an express, but qualified promise of confidentiality that allows specified unilateral disclosures of identity by the Commissioner. This cannot amount to an express grant of informer privilege, as conditions of any kind on the promise of confidentiality are inconsistent with the near absolute nature of informer privilege.

The Commissioner - Regarding the Agreement to Testify

90The Commissioner specifically points to the enforceability of the Immunity Applicant Witnesses’ agreement to testify (paragraph 5(b) of the Form of Immunity Agreement) as being particularly problematic for the continued strength of the Immunity Program should they be entitled to the protection of informer privilege. The Immunity Applicant Witnesses have admitted participating in criminal offences that are under investigation and could be key to the case should charges be laid and judicial proceedings occur. The Commissioner submits that if the privilege applies to them, the Bureau and/or the DPP will be required to seek an express waiver from them, notwithstanding their agreement to testify, before subpoenaing them to testify. The requested waiver could be refused under the shelter of the privilege, thereby risking a lengthy complex case. Further, paragraph 18(a) of the Form of Immunity Agreement could serve as a bar to a waiver as it states, “[n]othing in this agreement, or any action taken pursuant to it, shall constitute …a waiver of any privilege, by any party to this agreement.”

91If such a waiver of the privilege were refused, the parties agree that according to the terms of the Documents, the DPP could revoke the Immunity Applicant Witnesses’ immunity from prosecution because of lack of cooperation (paragraph 15 of the Form of Immunity Agreement). The Commissioner submits, however, that the privilege “could likely” survive that revocation and put the entire case in peril, a negative impact that is wholly inconsistent with the fundamental purpose of informer privilege, namely, he says, to ensure performance of the policing function and maintenance of law and order.

The Commissioner - No Codification of the Privilege Under the Act

92The Commissioner further argues there has been no codification of informer privilege under the Act (contrasted with section 487.3(2)(a)(i) of the Criminal Code of Canada, allowing for an order denying disclosure of the identity of a confidential informant).

93Under section 10(3) of the Act, the Commissioner points out that his privacy obligation to conduct all inquiries in private is time limited and does not apply once a matter goes to court, contrasted with informer privilege that can last indefinitely and, at times, survive the death of the confidential informer: R. v. Anderson, 2013 SKCA 92, 300 C.C.C. (3d) 296, at paras. 142-143.

94He submits that neither has there been a codification of informer privilege under section 29 of the Act, which sets out the Bureau’s confidentiality obligations, and gives the commissioner authority to disclose the identity of witnesses unilaterally and without waiver or permission from the witnesses in specified circumstances (to a “Canadian law enforcement agency”, and “for the purposes of the administration of the Act”). This is in contrast to informer privilege which entails a nearly absolute bar on identity disclosure.

The Commissioner - No Waiver if the Privilege Applies

95If the Immunity Applicant Witnesses are found to be protected by the privilege, the Commissioner concedes there has been no waiver of it.

Reply by the Immunity Applicant Witnesses - A Finding of Informer Privilege Would Not Be Contrary to the Public Interest Nor Would It Harm the Immunity Program

96The Immunity Applicant Witnesses reply that a finding of informer privilege protects, rather than harms, the relationship between the confidential informer and law enforcement officials so as to serve its dual public interest purpose, as expressed in Durham, at para. 12:

…informer privilege was developed to protect the identity of citizens who provide information to law enforcement…By protecting those who assist the police in this manner — and encouraging others to do the same — the privilege furthers the interests of justice and the maintenance of public order.

97The Immunity Applicant Witnesses submit the Commissioner’s argument that a finding of informer privilege would interfere with the detection and enforcement of crime under the Immunity Program is, firstly, an argument without evidence to support it; and secondly, an argument as to the Program’s structure that is not relevant to the issue of whether the class privilege of informer privilege exists between the Immunity Applicant Witnesses and the Commissioner under the Program.

98They also emphasize, as stated in Named Person v. Vancouver Sun, 2007 SCC 43, [2007] 3 S.C.R. 253, at para. 39, that the informer privilege rule is “mandatory” in the sense that once found it must be given effect to as a class privilege, subject only to the “innocence at stake” exception. It cannot be “granted” by the Bureau/police as the Commissioner has submitted.

Reply by the Immunity Applicant Witnesses - The Form of Immunity Agreement is Irrelevant to the Claim of Informer Privilege

99The Immunity Applicant Witnesses refer to the Supreme Court in Bisaillon v. Keable, [1983] 2 S.C.R. 60, at para. 95, and Barros, at para. 32, stating that class privileges such as informer privilege apply as a matter of law and not as a contractual right. Once found to apply, the courts, the Bureau/police, and the Crown have no discretion with respect to its application as “the privilege acts as a complete bar on the disclosure of the informer’s identity, and the police, the Crown and the courts are bound to uphold it.” (Durham, at para. 1)

Reply by the Immunity Applicant Witnesses - The Initial Assurances of Confidentiality To Them Were Unqualified

100The Immunity Applicant Witnesses state that from the outset of their providing information under the Program, and except for knowing they may have to testify if and when a trial occurred, there is no evidence that any other qualifications to the Bureau’s broad assurances of confidentiality were ever brought to their attention. They point to testimony from Witness 1 and Witness 2 to this effect, and also from Mr. Bessette, who said he was aware that assurances of confidentiality had been given to them from the beginning of the process, and he made no mention in his testimony of qualifications to those assurances.

101They also emphasize Mr. Bessette’s confirmation in his testimony that under the structure of the Immunity Program, the assurances of confidentiality are provided to immunity applicant witnesses on the Bureau’s behalf through counsel for a corporate immunity applicant, and unless and until a QFD Interview occurs, there is no direct contact between the Bureau and any of a corporate immunity applicant’s current or former officers, directors or employees.

Reply by the Immunity Applicant Witnesses - Their Agreement to Testify is not Incompatible with the Privilege

102The Immunity Applicant Witnesses submit there is no dispute and, therefore, no ‘predicament” as the Commissioner contends there will be if they are protected by informer privilege, because they have agreed to testify and “no further waiver is required”. They point to Named Person B., 2013 SCC 9, [2013] 1 S.C.R. 405, at paras 42-43, indicating, “nothing prevents them from keeping their privilege until there is a firm decision to testify by both the informer and the prosecution”.

Reply by the Immunity Applicant Witnesses – Paragraphs 7 and 18(a) of the Form of Immunity Agreement Do Not Waive or Serve as a Bar to Informer Privilege

103The Immunity Applicant Witnesses point to the if “necessary” and if “required by law” wording in paragraph 7 of the Form of Immunity Agreement (above), regarding when the Commissioner and the DPP may disclose their identity, as being far from unequivocal situations requiring disclosure and able, therefore, to constitute a waiver.

104Instead, they say these words operate to obligate the Commissioner and the DPP to ensure that disclosure of identity will only be made if the law requires that disclosure.

105In any event, they submit that paragraph 18(a) of the Form of Immunity Agreement preserves any privilege held by any party at the time it agrees to the Form of Immunity Agreement, including, as Mr. Bessette acknowledged, informer privilege.

106They also say that nothing in paragraph 7 constitutes a waiver of informer privilege by them, and that the Commissioner’s interpretation of paragraph 18(a) is “strained” as that subparagraph simply says that no action taken pursuant to the Form of Immunity Agreement constitutes a waiver of any privilege.

6. Analysis

(1) Overview

107Before I address the specific issues, it may be helpful to provide a general overview of the broader issues framing this case.

108The central legal issue in this case involves the relationship of informer privilege and the Immunity Program. Informer privilege is a strongly entrenched common law principle. The Immunity Program is a valuable and sophisticated administrative process. Both serve essentially the same public policy objectives related to law enforcement and, particularly, criminal investigation. The most significant difference between the two in this case relates to the circumstances under which a confidential informer might testify at trial.

109Under the common law principle, the confidential informer’s identity is protected and they are not required to testify at trial or any other judicial proceeding. There is a narrow exception based upon fairness to the accused. While both the informer and the Crown may agree to the informer testifying, this rarely occurs. Under the Immunity Program in the circumstances of this case, the informer’s identity is also protected, however, the informer agrees in advance that if the case goes to trial, they may be required to testify where anonymity may be lost. In effect, therefore, an informer under the Immunity Program is given the same protections as under the common law privilege except that when and, significantly if a trial occurs, their situations diverge.

110While the common law principle of informer privilege is well established and well respected, every common law principle, rule, or procedure is subject to the same process that led to its creation. As such, it must be receptive to adaptation to evolving circumstances, conditions, and societal context. In the context of this case, the adaptation does not require any change of the common law principle, but merely the welcoming of a related process that shares the same public policy objectives. These are, essentially, the goals of efficient criminal investigation and fairness to informers as well as to suspects and accused persons.

111In my view, the common law privilege is in no way challenged or diminished by the Immunity Program. Rather, it is complemented by the Program that is a more finely calibrated response to a specific genre of criminal law enforcement in the economic-regulatory field.

112In this case, I find that informer privilege attaches to the Immunity Applicant Witnesses at the outset of their participation in the Immunity Program, but that if the case goes to trial, they have waived the privilege by agreeing to testify.

113I proceed to address the specific issues below.

(2) Informer Privilege

(a) Temporal Aspect

114It is established, more than on a balance of probabilities in my view, that the Immunity Applicant Witnesses have been, and are confidential informers entitled to the protection of informer privilege beginning at the time of their initial involvement with the Bureau under the Immunity Program and continuing to the present time.

115Beginning with their initial involvement in the process under the Program, which I understand was at the proffer step, they were given express and broad assurances of confidentiality of identity by counsel for the Immunity Applicant on behalf of the Bureau; and then by the Bureau in relation to its inquiry into the criminal conspiracy offence, all in accordance with the Immunity Program as described in the 2010 Bulletin and in accordance with the Commissioner’s obligations under the Act.

116I conclude that the Immunity Applicant Witnesses had reasonable expectations of confidentiality. They testified they have understood, beginning with their initial involvement in the preparation for the proffer stage, that their identity will remain confidential except if called upon to testify at a trial. The Form of KGB Acknowledgment, which they signed before their QFD Interview with the Bureau, expressly confirms that “they may be a witness at a trial concerning the events you describe in this statement”. They said they have understood their identity may be revealed if called upon to testify at a trial at a later time, but they hope this will not be anytime soon, if at all, as they have been informed that many of these kinds of cases settle out of court. The Immunity Applicant Witnesses stated that the protection of their identity has always been very important to them, particularly given their admission of a criminal offence, and so too the opportunity to gain immunity under the Program by cooperating with its terms. They have cooperated in the Program with its conditions of full disclosure, cooperation, confidentiality, immunity, and revocation of immunity, including agreeing to the condition to testify at a later date.

117I focus on the temporal aspect of the attachment of the privilege because of its importance in two respects.

118The first as explained in Descoteaux, at para. 57, is that the privilege, as a class privilege, attaches immediately when the information is provided under an assurance of confidentiality so as to immediately afford protection.

119The second involves the understanding by the Immunity Applicant Witnesses since the very beginning of their cooperation with the Bureau, that they may be called on to testify at trial and their identity revealed, together with their later (for Witness 1, two years later) formal agreement to testify as evidenced in paragraph 5(b) of the Form of Immunity Agreement, consistent with this understanding.

120I have determined that this initial understanding and agreement to testify, as later formally recorded in the Documents, is not a presently effective waiver of informer privilege, but it is an express, clear, and informed waiver that is to take effect in the future, that is, when called upon to testify at trial. And, in the circumstances of this case and similar cases arising out of the Immunity Program, it possibly and perhaps probably will never take effect. As the Immunity Applicant Witnesses stated, “no further waiver is required” for them to testify as they have already agreed to so do. I return to the issue of waiver below.

(b) Public Interest Rationales

121I conclude the attachment of informer privilege to the Immunity Applicant Witnesses’ participation in the Immunity Program is not limited by, or contrary to the public interest rationales behind the privilege, namely, protecting those who provide useful information to the Bureau that would be otherwise difficult to obtain and encouraging others to do the same. It does not, as commented on before, and explained below, “compromise the very objectives that justify its existence” as cautioned against in Durham, at para. 17.

122Instead, I agree with the Immunity Applicant Witnesses that the privilege enhances the ability of the Program to uncover and stop criminal anti-competitive activity prohibited by the Act. Confidentiality assurances encouraging informers to come forward have always been a hallmark of the Program and one key to its success. I do not think it would be favourable to the Program’s continued success if potential or cooperating informers knew they might have to, on a case by case basis, defend the protection of their identity against others, as has occurred in the present case. There should be no ambiguity to the validity of the Bureau’s confidentiality assurances in accordance with the Act and under the Immunity Program, including its promised resistance to such challenges as indicated in paragraph 11 of the Form of Immunity Agreement.

123I do not agree, therefore, that the attachment of the privilege would impair the Bureau’s investigative and crime stopping abilities under the Immunity Program. Furthermore, that argument by the Commissioner strays into the field of engaging in a prohibited “balancing of the benefits of the privilege against countervailing considerations” (Leipert at para. 12; Named Person v. Vancouver Sun, 2007 SCC 43, [2007] 3 S.C.R. 253, at paras. 22-23), turning it into a case-by-case privilege, which it is not.

124The same prohibited balancing occurs in the Commissioner’s argument that the Bureau has other ways to protect the confidentiality of witnesses under the Program, other than by informer privilege. It has, for example, successfully relied on sealing orders and redactions to protect the identity of informers, and it is committed to treating confidential information responsibly and in accordance with the law, which is essential to its integrity as a law enforcement agency. In my view, these other measures will be able to continue under informer privilege, without the necessity for a balancing of concerns.

125I understand one of the Commissioner’s primary concerns for the Program, as detailed above, is the Bureau’s perceived inability to pierce the privilege and unilaterally require Immunity Applicant Witnesses to testify at a trial where their anonymity could be lost if informer privilege were to attach to its confidential informants, including the Immunity Applicant Witnesses.

126In addition to the prohibited balancing argument, the Immunity Applicant Witnesses object to this scenario from the Commissioner as being entirely speculative, unsupported by any evidence and contradicted by their agreement to testify.

127I agree this scenario is not supported by the evidence. However, in any event, even if it is a relevant consideration, it cannot arise in the circumstances of this case in light of the waiver I conclude has been clearly given by the Immunity Applicant Witnesses. I return to the issue of waiver below.

(c) Assurances of Confidentiality

128The Commissioner has argued, as detailed above, that the Bureau/police has neither explicitly nor implicitly granted informer privilege status to the Immunity Applicant Witnesses in any of the Documents, or by virtue of anything in the Act or under the Immunity Program. He also submits that while the Bureau’s investigators acted in good faith in taking steps to protect the confidentiality of the Immunity Applicant Witnesses, they did so pursuant to their obligations under the Form of Immunity Agreement and under the Act, and not because they considered them to be confidential informers entitled to informer privilege.

129The Commissioner points to there being only “qualified” assurances of confidentiality of identity coming from the Bureau under the Program and in the Documents, allowing specified unilateral disclosures of the identities of the Immunity Applicant Witnesses in certain situations. Paragraph 7 of the Form of Immunity Agreement repeats similar qualified assurances from the 2010 Bulletin, so that the Immunity Applicant Witnesses could be said to have known of those qualifications through their interactions with counsel for the Immunity Applicant who, it is agreed, is well versed in the Immunity Program process.

130The Commissioner argues that these kinds of qualified assurances of confidentiality of identity under the Program are inconsistent with the near absolute nature of informer privilege.

131The Immunity Applicant Witnesses reply by saying the privilege is not one that can be granted by the Bureau. It is a class privilege that is enforced as a matter of public interest; it is not a privilege that is owned and able to be granted by the Bureau.

132While this submission from the Immunity Applicant Witnesses is correct in law, I think it is a slight mischaracterization of the Commissioner’s point, which is such because of the “exceptions” to the promises of confidentiality of identity in the 2010 Bulletin informing the public, including the Immunity Applicant Witnesses, of limitations on the confidentiality of their identity under the Program. There has never been a promise from the Bureau/police to keep their identity secret at all times, subject only to innocence at stake.

133However, as the Immunity Applicant Witnesses submit, and I agree, beginning at the time of their initial participation in the Program they were given broad assurances of confidentiality of their identity while they worked towards immunity. They were not informed as to any qualifiers to the Bureau’s and the Program’s assurances of confidentiality.

134Neither should they have been so informed, in my view, as the qualifiers (paragraph 31 of the 2010 Bulletin as reflected in paragraph 7 of the Form of Immunity Agreement) do not amount to clear “exceptions” allowing the Commissioner to disclose their identities. These “exceptions” simply operate to state, in effect, that without an agreement to disclose from the party, the DPP and the Commissioner will comply with the law if required to disclose identity, but otherwise they “shall not disclose to any third party” the identity of the individuals covered by the Form of Immunity Agreement.

135The result is that the essentially broad nature of the Bureau’s assurances of confidentiality of identity remains intact for the Immunity Applicant Witnesses under the Program and under the Documents.

136In Barros, at para. 32, Binnie J. commented that clear evidence of informer status conferred explicitly, rather than after-the-fact supposition, would be easier to defend as informer privilege, but said “[k]eeping in mind that informer’s privilege was created and is enforced as a matter of public interest rather than contract…”. I conclude that the privilege has attached not as a matter of contract, but as a matter of public interest because of explicit and broad assurances of confidentiality.

137Another way of viewing the Documents, therefore, is that they have become after-the-fact and irrelevant to the issue of whether informer privilege, as a matter of public interest, has attached to the Immunity Applicant Witnesses at the time of their initial participation in the Program. The broad assurances of confidentiality from the Bureau preceded and served, along with the potential for immunity, to encourage their disclosure of information under the Program. After this initial disclosure, the Form of Immunity Agreement is more a focus on continuing obligations of disclosure and cooperation so as to avoid revocation of immunity than it is about its assurances of confidentiality of identity that essentially repeat the assurances from the 2010 Bulletin. I conclude, therefore, that the Documents are not able, and do not serve to displace informer privilege that has already attached.

138The Commissioner argues that the Immunity Applicant Witnesses are more than “tipsters” to a program such as Crime Stoppers who are typically confidential informants protected by the privilege, as they have a cooperation obligation under the Program. I fail to understand why this cooperation obligation should distinguish them from other confidential informants protected by the privilege. Confidentiality of identity is “automatic” under section 29(1)(a) of the Act. Immunity is earned under the Program. The Immunity Applicant Witnesses provided information to the Bureau on the promise of confidentiality of identity. They knew they had to earn immunity. The privilege attached at the beginning, before their immunity was earned.

139It is for these reasons the Commissioner’s position that the Program’s qualified assurances of confidentiality are not compatible with informer privilege does not succeed.

(d) No Bar Under the Act

140While I agree there is no codification of the privilege under the Act, neither does the Act serve to bar the attachment of the privilege. Section 29 is very restrictive as to when identity can be disclosed as opposed to information made public or authorized to be made public.

141I conclude the Act is not a bar to the attachment of informer privilege to confidential informers.

(3) Waiver

142The Commissioner’s position is that if informer privilege applies, as I have concluded it does, there has been no waiver of it by the Immunity Applicant Witnesses.

143The Immunity Applicant Witnesses’ position on waiver is the same, that there has been no waiver, including under paragraphs 7 and 18(a) of the Form of Immunity Agreement. Paragraph 7, as reproduced above and discussed previously, deals with the “exceptions” allowing for disclosure of identity including paragraph 7(d) where the party has agreed to disclosure. Paragraph 18(a), also reproduced above, says, “[n]othing in this agreement, or any action taken pursuant to it, shall constitute: (a)…a waiver of any privilege, by any party to this agreement.” The Immunity Applicant Witnesses submit that paragraph 18(a) should be interpreted to mean that no action taken pursuant to the Form of Immunity Agreement constitutes a waiver of any privilege held at the time they signed the Form of Immunity Agreement.

144I accept these positions as they apply to any presently effective waiver. There are none.

145As stated in Named Person B., 2013 SCC 9, [2013] 1 S.C.R. 405, at paras. 42-43, nothing prevents informers from keeping their privilege “until there is a firm decision to testify by both the informer and the prosecution”.

146My conclusion on waiver, summarily stated in the language of Named Person B., is that the Immunity Applicant Witnesses, as confidential informants entitled to the protection of informer privilege, as I have determined is their status, keep their privilege until they are required to testify at a trial in relation to the anti-competitive conduct at issue in this case. They have agreed in paragraph 5(b) of the Form of Immunity Agreement to testify in “judicial proceedings” at such time as called upon. The DPP has also agreed. Together with the Immunity Applicant Witnesses’ understanding and agreement that they may have to testify at a trial in this matter when their anonymity may be lost, this can be regarded as an agreement by the two “owners” of the privilege that the privilege is waived at the time of being called upon, amounting to the “firm decision” to testify at a trial.

147Of course, the key to this issue of waiver is whether the agreement to testify at a future trial can be regarded as a clear, express, and informed waiver of the privilege by the Immunity Applicant Witnesses and the DPP.

148The Commissioner has not characterized the agreement to testify as a waiver of informer privilege if the privilege applies.

149The Immunity Applicant Witnesses have appeared to shy away from this characterization of the agreement to testify. In their written submissions, they have said their agreement to testify under paragraph 5(b) of the Form of Immunity Agreement does not pose a “predicament” for the Bureau in connection with the Immunity Program because there is no dispute that they have agreed to testify and “[n]o further waiver is required.” This is their only reference to the agreement to testify amounting to a waiver. They then go on to argue that this agreement to testify does not amount to a waiver of informer privilege, and the Commissioner agrees.

150The point neither party has raised in arguing “no waiver” is that the agreement to testify, reduced to writing in the Form of KGB Acknowledgment, always understood by the Immunity Applicant Witnesses, and agreed to by the Commissioner – provided it is properly regarded as a waiver – is not operative at the present time, and is only effective at a future date if and when the Immunity Applicant Witnesses are called upon to testify at a trial in relation to the anti-competitive conduct at issue in this case.

151While the existence of a class privilege is not a matter of contract, the existence of a waiver certainly can be, although it does not have to be. In the particular circumstances of this case, the waiver of the confidentiality of the identities of the Immunity Applicant Witnesses at a future time has been expressed both verbally and in writing by each of the Immunity Applicant Witnesses and by the Commissioner.

152As reviewed before, the Immunity Applicant Witnesses, beginning with their initial providing of information to the Bureau, have always agreed they will testify at a trial in this matter if called upon. This agreement is also pursuant to paragraph 26 of the 2010 Bulletin indicating that witnesses may be called upon to testify in court proceedings. They have clearly expressed, both in the Documents, and in their testimony, their agreement to their identity being revealed in that later trial.

153I can anticipate an argument that when they agreed to this future revealing of their identity, it had not been judicially determined that they were entitled to the protection of informer privilege so that they did not understand they had a privilege to waive.

154I am not certain the Immunity Applicant Witnesses would want to make this argument, however, I do not understand that anything has been changed by the application of the privilege to them other than to give them near absolute protection of their identity which, in any event, is the understanding they had at the time they agreed to provide information and testify at a later time and reveal their identity.

155To characterize their agreement to testify as being an express waiver of their privilege to remain anonymous does not carry with it unknown legal complexities or consequences, and neither is it one that is difficult to understand. It is simply part of their “bargain” from the beginning with the Bureau under the Program of confidentiality of identity until they are obliged to testify at a trial when their identity may be revealed and anonymity lost.

156I think it a reasonable characterization and one that is not prejudicial to the Immunity Applicant Witnesses, or for that matter to the Commissioner and the Program, that the agreement to testify at a trial and resultant probable loss of anonymity be characterized, based on the evidence before me, as an express waiver of the privilege. It is one that the Immunity Applicant Witnesses have already referred to, though fleetingly, as a waiver, and one that is to take effect at a future time. There is nothing about its characterization as a waiver of the privilege to remain anonymous that is unclear.

157I come to this conclusion regarding an existing and express waiver that is only effective at a future time based on the evidence before me, indicating that for the Immunity Applicant Witnesses and the Bureau, this reflects their actual and clear understanding of the process under the Immunity Program – that anonymity can be lost at that future time.

158The agreement to testify is not a “deemed” waiver. It is clearly understood and agreed to as a future possible loss of anonymity at a trial. I am not aware of any jurisprudence on the issue of an agreement to testify with a resultant loss of anonymity being an express waiver that takes effect at that future time, other than as generally indicated previously with respect to waiver.

159I acknowledge, as the parties have pointed out in further submissions, the difference between the agreement of the Immunity Applicant Witnesses to testify in “judicial proceedings” as stated in paragraph 5(b) of the Form of Immunity Agreement, and their understanding and agreement to testify at a future trial. A trial is potentially narrower than other judicial proceedings and “judicial proceedings” could certainly encompass more than a trial. However, I have restricted the waiver from the Immunity Applicant Witnesses to only applying to a future trial situation because a waiver of informer privilege, as reviewed before, must be “clear, express and informed”. The evidence before me is that the Immunity Applicant Witnesses only consented to a loss of anonymity at a future trial and not at unexplained other judicial proceedings. They confirmed this in their testimony and in the Form of KGB Acknowledgment, making this restriction of their waiver to a future trial situation necessary so as to conform with the evidence.

160Turning to the written terms of this waiver in the Form of Immunity Agreement (incorporated by each Form of Immunity Agreement Acknowledgment to apply to each of the Immunity Applicant Witnesses), I understand that given the language in paragraph 5, whereby the parties agree that immunity is conditional on continued disclosure and cooperation, including “to testify in judicial proceedings at times and places designated by the DPP or the Commissioner” (paragraph 5(b)), together with language in paragraph 7(d), which allows for the disclosure of identity where the party “has agreed to disclosure”, that the parties’ understanding is that the Immunity Applicant Witnesses will testify at a trial and lose anonymity, effective at that future date. Paragraph 18(a) is no bar, as I agree it can be reasonably interpreted to mean that no action taken pursuant to the Form of Immunity Agreement constitutes a waiver of any privilege held at the time a party signed the Form of Immunity Agreement. I conclude, therefore, that there is no term in the Form of Immunity Agreement inconsistent with the agreement to testify constituting a waiver of the privilege and its protection of anonymity.

161The Commissioner has stated that informer privilege would also make the continuing disclosure and cooperation conditions in the Form of Immunity Agreement in paragraph 5 completely unenforceable. This is a serious concern, of course, although not relevant to the attachment of the privilege by operation of law as stated previously, however, I refrain from speculating on future circumstances other than to comment that the nature of the “judicial proceedings” in paragraph 5 of the Form of Immunity Agreement is not defined or limited, and a waiver by the agreement to testify can, in other cases, potentially apply to a variety of judicial proceedings. In this case, as I have indicated based on the evidence before me, the waiver of the privilege from the Immunity Applicant Witnesses can only apply to a future trial in this matter. Notwithstanding this restriction, however, the Immunity Applicant Witnesses remain bound, as part of their continuing obligations of disclosure and cooperation under the Form of the Immunity Agreement, to testify at “judicial proceedings” when called upon so as to avoid revocation of their immunity status, subject to their status as confidential informants entitled to the protection of informer privilege protecting their identity in judicial proceedings other than a trial.

162My conclusion on waiver in this case has also taken into account the evidence of the unique circumstances of the Immunity Program where, as I understand its history as placed before me in various public statements about it, different Commissioners have understood confidential informants to have informer privilege but have stopped short of that recognition at times, and certainly in this case, primarily, as I understand the Commissioner’s arguments, because of the agreement to cooperate and testify requirements.

163Additionally, my conclusion on waiver has taken into account the evidence that all parties to the Immunity Program in this case are, and have been, well versed in its requirements including express notice of the requirement to testify at trial and resultant loss of anonymity, as contained in the 2010 Bulletin and in the Documents. The Immunity Applicant Witnesses have had the benefit of expert legal advice throughout their participation in the Program. This is not a relatively simplistic, hasty or more traditional criminal law situation of an informer to the Crime Stoppers program, an informer making a 911 call, or implicit guarantees of confidentiality being given by a police officer to a drug informant. The Program is sophisticated, well known, and well managed.

164It is this context that has led me to reflect the actual situation between the Immunity Applicant Witnesses and the Bureau under the Program in my conclusion regarding the waiver, notwithstanding that the parties did not address it directly.

(4) No Presently Effective Waiver

165Accordingly, I also conclude that the waiver of informer privilege in place for a future trial in relation to the anti-competitive conduct at issue in this case is not a waiver of informer privilege by the Immunity Applicant Witnesses that is effective at the present time.

166If there are further details to be settled, I can be contacted.

The Honourable Madam Justice Ratushny

Released: August 24, 2018

COURT FILE NO.: 17-13302 DATE: 2018/08/24 [REDACTED DECISION] ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: SOBEYS INCORPORATED and METRO INCORPORATED Applicants – and – THE COMMISSIONER OF COMPETITION Respondent on this Application – and – IMMUNITY APPLICANT WITNESSES 1 AND 2 Applicants on this Application – and – THE GLOBE AND MAIL INC., THE CANADIAN BROADCASTING CORPORATION, POSTMEDIA NETWORK INC. and CTV NEWS, A DIVISION OF BELL MEDIA INC. Interveners reasons for decision REgarding Immunity Applicant Witnesses as informer privilege claimants on first stage heariNG RATUSHNY J.

Released: August 24, 2018