COURT FILE NO.: XX/17; XX4/17 DATE: 2020-03-20

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN M.K. and T.K. , for the Crown

• and -

T.B. M.F. and M.S. , for T.B. (Applicant) Accused

HEARD: Various dates in Ontario Mr. Justice F.B. Fitzpatrick

REASONS FOR Judgment on Pre-Trial Application

[1] T.B. applies to have serious charges against him/her stayed. T.B. claims that his/her s. 7 Charter right to security of the person has been breached by state action.

Background

[2] I have written three previous decisions in respect of this application. Due to the sensitivities of this matter, and in the interest of efficiency, I repeat and rely on those rulings for the purposes of this decision. However, those decisions are subject to a publication ban and are not to be accessed by anyone who does not already have the decisions in hand.

[3] The essential ruling arising from the latest of my decisions, delivered on November 4, 2019, is that T.B. enjoyed a privilege as a confidential informant after February 18, 2016. In that regard, I was simply affirming a ruling made by one of my colleagues on March 6, 2019. That decision and my previous decisions are subject to a sealing order made by the case management judge overseeing the progress of this matter. In the reasons for my decision, I identified persons and events about which I had heard evidence during the application which led to that decision. I felt free to do so as the decision dealt with interlocutory matters and were protected by the sealing order. The decisions were meant for the parties only.

[4] However, having now received the submissions of the parties, I see it as in the interests of justice for this judgment to be published. As the matter involves a confidential informant, I endeavoured to write these reasons in such a way as to protect the identities of all persons involved. I am purposefully less fulsome in identifying exact quotes, or particular witnesses who said certain things from which I make findings than I would be in a “usual” criminal matter. I am alive to the law that judges are required to give meaningful reasons to allow appropriate appellate review. In this matter, if the evidence of T.B. and his/her sibling about various conspiracies of state actors to do him/her harm on some occasions were discounted, which it was, I was left with relatively straightforward evidence about the critical issues and particular events necessary to resolve this application. I address the deficiencies I see in T.B. and his/her sibling’s evidence about what I see as collateral matters later in this judgment.

[5] However, my comfort in writing with a larger than usual degree of circumspection concerning the evidence in this case comes from three places. One, the evidence about the three critical events I see as governing the ultimate disposition of this matter was electronically recorded and I could, and I did, watch it all. Second, the evidence of the Crown witnesses was largely consistent with the manner in which they treated T.B. throughout this matter.

[6] Third, in this case, the confidential informant was a party to the hearing. This is unlike the jurisprudence that typically deals with confidential informants who are not parties to the proceeding at issue. T.B. alleges that he/she has suffered personal injury because his/her identity was disclosed to persons who did not wish him/her well. This places this matter in a somewhat different category than other decisions that deal with the degree of detail that should or should not be disclosed in a decision where the confidential informant was not a party.

[7] I nonetheless attempt to balance the need to be clear in these reasons with the need to protect T.B.’s identity from further disclosure. I am mindful of the caution of McEachern C.J.B.C. that “judges should recognize that any confidence they have about their ability to edit out information that might disclose the identity of an informant is probably misplaced and possibly dangerously so” (R. v. Liepert, 1996 BCCA 471, 106 C.C.C. (3d) 375 (B.C.C.A), aff’d R. v. Liepert, 1997 SCC 367, [1997] 1 S.C.R. 281, at para. 35).

Position of the Parties

[8] T.B. argues that his/her s. 7 right to security of the person has been violated by actions of the police and the Crown. He/she points to a number of actions by both state agencies in disclosing the contents of an interview of which he/she was a party on February 18, 2016. He/she alleges that these actions constitute an abuse of process for which he/she should be granted a stay of proceedings. Specifically, T.B. argues, first, that police have dealt with him/her in a way that can be most charitably described as “rotten.” Second, T.B. submits that certain Crown attorneys have been grossly and repeatedly negligent in their dealings with him/her. Third, T.B. argues that this court must “send a message” condemning this conduct in order to preserve the integrity of the justice system. A stay of proceedings is the only way the court can disassociate itself from the conduct shown by the evidence presented during this application.

[9] The Crown admits that the police caused a breach of T.B.’s s. 7 Charter right to security of the person. It does not admit that Crown attorneys called as witnesses in this case have done anything wrong. The Crown argues that the breach was minor and can be remedied in a manner well short of a stay.

[10] Evidence and arguments in this matter were presented over 22 days of hearing. Having heard all the evidence and submissions of counsel, I suspect that both sides had “agendas” which directed their submissions. Much of their submissions dealt with conduct and perceived deficiencies of character on the part of certain actors. These lines of argument and their supporting evidence were not directed at the central question before me, namely was there a breach of T.B.’s s. 7 rights; if so, did this amount to an abuse of process and what is the appropriate remedy. I do not see it as necessary to identify the nature of what I perceived to be these “agendas” because I do not think I need to resolve them to adjudicate the central issue. However, I think they needlessly consumed a great deal of court time.

The Essential Interactions

[11] At the outset, I observe that a lot of the focus on non-essential issues in the application arose from T.B.’s opinions and beliefs about various state actors and what he/she thought they were doing to him/her. In his/her testimony, and that of his/her sibling, various veiled accusations that could be characterized as “conspiracy theories” were advanced. The Crown was obliged to respond. I find most of this evidence irrelevant to the central issue. I do not believe a great deal of what T.B. said about his/her interactions with state actors. I agree with the submission of the Crown that he/she is a fraudster.

[12] However, I find that this general lack of credibility on the part of T.B. is not critical to the essential question that is at issue for his/her case on this application. This is because what I see as the essential interactions in this matter were all captured electronically. Counsel and I referred to these digital captures as “tapes, or matters being videotaped.” I know, we all know, that this is a reference from the past, but it has stuck around. All the media we viewed was digital.

[13] Unfortunately, one essential interaction was recorded with video only. There was no audio in the video of T.B. being beaten while he/she was in custody. In that regard, I specifically assess the testimony of T.B. and others about what happened during that event. I do find T.B. credible with respect to that interaction, despite having discounted a great deal of other things he/she said about other events. I judge his/her testimony of those collateral events as incredible.

The Three Essential Interactions

[14] In my view, there were three essential interactions upon which this application either rises or falls. They are:

a) The February 18, 2016 “off camera/on camera” police interview of T.B. (“Interview”) b) The May 12, 2016 police interview of Mr./Ms. X. c) The January 10, 2018 assault on T.B. at an Ontario Provincial Jail.

The Law

[15] I address the evidence and my findings from each of these interactions in turn. At the outset, it is important to set out what I view as the overarching legal test which will be applied in determining whether or not to grant the relief requested. This framework was described by the Supreme Court of Canada in R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309.

[16] In my view, the most significant legal pronouncements about the tests that apply to this case were stated by the majority decision of Moldaver J. at paras. 30 to 45. In my view, the case at bar falls into the residual category described in Babos, that is, the conduct complained of here potentially risks undermining the integrity of the judicial process. I would summarize the applicable principles from Babos, as follows.

[17] A stay of proceedings will be warranted only in the clearest of cases. For T.B. to successfully obtain a stay of proceeding, he/she must prove on a balance of probabilities all parts of a three-part test. The first part requires proof that the state has engaged in conduct that is offensive to societal notions of fair play and decency and that proceeding with a trial would be harmful to the integrity of the justice system. The second part inquires if an alternate remedy short of a stay of proceedings would adequately dissociate the justice system from the impugned state conduct. Finally, if there is uncertainty over whether a stay is warranted, the court undertakes a balancing exercise. The court considers the nature and seriousness of the impugned conduct, whether the conduct is isolated or systemic, the charges at issue, the circumstances of the accused and the interest of society having the charges disposed of on the merits.

[18] In addition, there was no dispute between the parties about the legal principles or concepts that apply to persons who are found to be confidential informants. Informer privilege is absolute. Informer privilege is so sacrosanct that even the right to make full answer and defence, to which is tied the right to disclosure, does not permit an exception to the privilege. There is a duty on various state actors, Crown, police, counsel and the courts to keep an informer’s identify confidential. The Crown and police cannot disclose an informer’s identity without the informant’s consent. Also, it is recognized that it is virtually impossible to restore the privilege once it is broken. It is one “box” in the criminal law world that resoundingly affirms the parable of Pandora’s box, with the exception that the tiny voice of hope is never the last item which gets released from this particular type of Pandora’s box. The last item released from a box of broken privilege is usually “a good smackdown.”

The Three Essential Interactions

The Interview of February 18, 2016

[19] It is clear from the evidence that in February 2016, T.B. was the only suspect in a series of serious crimes. The police knew multiple persons were involved in these crimes because of the evidence of the victims. The police established a task force comprised of four officers to investigate. An operational plan was devised. T.B. was already wanted on outstanding charges, so police had a reason to arrest him/her. The plan provided that upon his/her arrest, a tracking device would be placed on T.B.’s car. Further, in the course of processing T.B. on the outstanding charges, he/she would be interviewed and introduced to an undercover officer. All of these actions were designed to lead to further information and presumably an arrest of T.B. and others in respect of the serious matter.

[20] Initially, the police did not intend or expect the Interview would yield any substantive information about the matter for which T.B. was a suspect. The Interview was to be directed only at the relatively lesser offences with which T.B. was charged when arrested on February 18, 2016. The operational plan did not go according to plan. When uniformed officers arrested T.B., he/she did not go “quietly.” He/she backed his/her car into the arresting officers’ cruiser. The damage this caused made it impracticable for the police to place the tracker on his car.

[21] Counsel for the applicant made a great deal of the circumstances of T.B.’s arrest. In my view, this evidence was a waste of time. The circumstances of the arrest and what the arresting officers did, or did not do, say or did not say, did nothing to advance T.B.’s claim of a s. 7 Charter breach. T.B.’s refusal to cooperate, backing his/her car into the police cruiser and then running away when police managed to open the door of his/her car, reveal unsavory aspects of T.B.’s character. His/her attempt to flee in the circumstances of a benign police stop indicate that as of February 18, 2016, he/she was not just an average, law-abiding citizen. It indicates that he/she was firmly committed to pursuing his/her living through criminal activities. I appreciate that the Crown was required to respond to the applicant’s allegations about this event. However, none of the evidence addressed T.B.’s status as a confidential informant or the police response to information he/she offered up in the course of the Interview. At best, it was narrative that could have been dealt with by agreed facts.

[22] The Interview following the arrest did not go according to plan either. The interviewing officer did not testify in this application. I accept the Crown submission that his/her failure to testify was for legitimate reasons. I appreciate the applicant’s protests that there was no hard evidence tendered as to why the officer was unavailable to testify. However, I was able to watch the Interview. All the parties, including T.B. and I watched it together in court. I find that I can draw appropriate conclusions of fact necessary for the resolution of this application from that viewing.

[23] As noted in my decision of November 4, 2019, another Superior Court Justice determined that as a result of the Interview, T.B. had the status of a confidential informant after February 18, 2016. To be clear, the officers investigating T.B. for the charges he/she now seeks stayed did not view T.B. as a confidential informant after February 18, 2016. The Crowns prosecuting T.B., both as the result of information they received from the police and, for one Crown, who actually reviewed a full transcript of the Interview, were of the opinion that T.B. was not a confidential informant at any time material to this application. This certainly coloured the manner in which these state actors dealt with T.B. It explains their behaviour. Whether or not it excuses their behaviour is another matter.

[24] The Crown argues that T.B. was not enough of a confidential informant to benefit from the privileges accorded to such persons by the established authorities. As noted in my November 4, 2019 ruling, I agree with my colleague that T.B. was a confidential informant following February 18, 2016. The record of the Interview clearly supports this view. The interviewing officer went well beyond questioning T.B. about the events of his/her arrest on February 18, 2016. The officer held himself/herself out as an intelligence officer with a specialty in organized crime in a particular community, a community of which T.B. was a member. T.B. was tricked into believing the camera was off. T.B. was told by the officer that the Interview was not being recorded when, in fact, it was.

[25] As stated in my decision of November 4, 2019, the deception tactic is a key factor for my conclusion that T.B. expected his/her disclosures to be kept confidential. I agree with the Crown’s submission that the interviewing officer made no explicit promise of confidentiality during the Interview. However, after viewing the Interview in its entirety, it is clear to me that the interviewing officer did make several implicit promises to T.B. There is ample authority for the proposition that implicit promises can create a confidential informant relationship (see for example Bisaillon v. Keable, 1983 SCC 26, [1983] 2 S.C.R. 60, at p. 105).

[26] T.B. was shown, but not given, the interviewing officer’s card in a portion of the Interview where the officer suggested he/she had precedence over other officers. In my view, implicit in this discussion was an offer to create a special relationship, a confidential one, with T.B. in return for information. The interviewing officer offered judicial consideration to T.B. in respect of the charges he/she was facing in return for information. The interviewing officer offered to massage the bail application in return for information.

[27] The officer spoke in terms of creating a “business relationship” with T.B. This is plain and obvious language. Police officers do not do business deals in the ordinary commercial sense of the word with people they have forced into an interview room following an arrest. The only “business deal” that could conceivably be understood to arise from use of this type of language is a confidential informer relationship.

[28] In my view, the interviewing officer made an important tactical call as he/she was doing his/her job. This is not surprising. Police officers are trained to react to evolving situations and to use their training, skills and experience to adapt and cope with rapidly changing events. They are expected to exercise a degree of independence in their work. It is why society values the work police do. However, police officers are always constrained by the law.

[29] I am sure the officer in charge of the Interview did not anticipate T.B. asking to have the camera turned off once the Interview started. However, the officer did not need a long recess once he/she decided to trick T.B. into thinking he/she would be “off camera.”

[30] The interviewing officer deployed a trick. The interviewing officer said the recording devices had been turned off. The interviewing officer moved T.B. to another room. The interviewing officer then did not turn off the recording device in the new room. I note that the transcript of the Interview reports the officer saying that the recording device was “on.” However, in the recorded Interview, the officer clearly says, “off.” This was a curious typo in the transcript. Nevertheless, counsel agreed that the transcript was incorrect, and that T.B. was tricked into believing that he/she was not being recorded when in fact he/she was.

[31] In my mind, there is no question that deploying the trick of telling T.B. the camera was off when it was on placed the circumstances of the Interview into a special category for those involved. Most especially the interviewing officer. I did not hear expert evidence about police interviewing procedure in this application. Nevertheless, common sense tells me that the interviewing officer was in a place that he/she knew or ought to have known required extra caution about what statements or evidence were obtained from the Interview. This is confirmed by the fact that the lead detective on the task force sought legal advice specifically about the deception tactic two days following the Interview.

[32] Once T.B. thought the cameras were off, the Interview continued for about three hours. T.B. obliged the interviewing officer’s express request for information about other crimes and criminals. He/she gave detailed information about other crimes and their perpetrators. He/she expressly implicated other persons in respect of several different but very serious crimes. He/she acted like an informant, a “rat,” during the Interview.

[33] Counsel agree that T.B. was not cautioned nor read his/her Charter rights. He/she was not informed of his/her right to remain silent about the serious charges of which he/she was suspected at the commencement of the Interview.

[34] I am of the view that use of the “camera on/camera off” trick is a permissible police tactic. In the normal course, society expects police not to lie. Alternatively, I think society also sees it necessary for the police to sometimes do dishonourable things, lie for example, in order to achieve an end in protecting society. However, I also expect that society would be shocked if deployment of this dishonourable tactic was allowed without some limitations on what might be done with the information gained from it.

[35] In this case, I analogize the decisions of the interviewing officer about how to conduct the Interview to decisions a person might make about how to get from one point to another. The method a person uses both for interviewing suspects and for going from one place to another practically informs a number of outcomes. In the case of a journey, the method of transportation dictates how long the journey will take. If, for example, I decide to travel from Thunder Bay to Toronto by car, I cannot complain that it is going to take at least fourteen hours to complete the journey. I cannot complain that I must drive through the United States to get to Toronto in a timely way if the roads are closed around Sudbury because of snow. Also, once I have spent seven hours driving to Sault Ste. Marie, I cannot decide that I want to change my method of travel to airplane unless I am prepared to leave my car at the Sault airport or drive back to Thunder Bay, all of which have practical consequences in terms of time and future plans and money.

[36] I refer to these analogies because I am of the view that how the interviewing officer chose to conduct the Interview had practical consequences. Once the officer started down a particular path and began making certain representations to T.B., he/she and other police dealing with the contents of the Interview simply could not go back to the beginning or hit “reset” or pretend that certain things had not happened as they did. Ultimately, I draw a conclusion from listening to the police officers who testified in this case that they either ignored or were willfully blind to the realities or limits imposed by how the Interview was conducted. I say this for several reasons.

[37] First, it is clear that the task force officers realized that using deception during the Interview might cause problems. They sought legal advice on the issue from a senior Crown. However, in my view, the way they went about obtaining the advice raises concerns.

[38] None of the task force officers observed the entire Interview as it was occurring. They testified they were doing other tasks at the time. They watched bits and pieces. To me this sounds extraordinary given that the interviewing officer was not a member of the task force. Initially, the plan was to conduct the Interview as part of an overall ruse to put T.B. into a situation where he/she could be introduced to undercover agents in the holding cells and a tracker could be placed on his/her vehicle. The latter part of the plan failed even before the Interview began. It seems to me that this would create a mind to proceed with caution in a reasonable police officer interviewing a suspect of serious crimes. A change in one aspect of a plan should cause reconsideration of all its aspects. This is especially so when the suspect requested that the interview not be recorded, and the interviewing officer never intended to comply with that request.

[39] There was a conflict in the evidence of the task force officers about whether the interviewing officer gave them a debriefing of what had happened during the Interview. I find this curious having watched the Interview. The Interview went on for a long time. T.B. said a lot of things about a lot of serious matters. I think that what he/she said would have caused a non-task force officer to take some time to inform the task force officers of what had transpired during the Interview.

[40] I am convinced on a balance of probabilities that the interviewing officer did not specifically debrief the task force officers about the Interview. This is because I accept the evidence of the other officers that once the interviewing officer completed the Interview, he/she was required to be elsewhere in the police station. Right after he/she completed the Interview, he/she was required to attend to the undercover officers who did the “cell shot” with T.B. This was part of the original plan and was unaffected by T.B. smashing his/her car into that of the arresting officers.

[41] Also, regarding a debrief, according to the evidence of the task force officers, none of them had seen it necessary to review the entire tape of the Interview before legal advice was sought. I see this action on the part of the police as more probably occurring in a circumstance where they had not been alerted to the actual contents of the Interview. As far as the task force officers were concerned, nothing significant had occurred during the Interview at least as far as T.B. thinking or being put in a situation where he/she could reasonably think, he/she was a confidential informant. This explains the task force officers’ decision not to watch the Interview in its entirety before they obtained legal advice about it. It does not however excuse or minimize the importance of that decision.

[42] A meeting was held with a senior Crown and two of the task forces officers five days after the Interview had been completed. Neither the officers nor the Crown was aware of the express contents of the Interview. The senior Crown provided an email, entered into the evidence, which I find represented a legal opinion on what was a limited issue as clearly set out in the opinion. The issue on which the opinion was given was whether it was acceptable for the police to deploy a deception tactic during the Interview, a tactic which I have identified as the “camera on/camera off” trick. The opinion of the senior Crown was that it was acceptable to deploy the trick. However, the opinion was qualified. It stated “where ‘going off the record’ has resulted in problems is when accused parties have not been properly cautioned or given their rights to counsel, or there are other promises made (like confidentiality)” (emphasis added).

[43] In its email opinion, the Crown had quite properly alerted the police to problems. When any reasonable person gets a written opinion from a lawyer that says such and such conduct causes problems, I think it necessarily causes that person to reconsider what he or she has done in the first place to require a lawyer’s opinion. The evidence of all four task force officers was that they did not reconsider what they had done with T.B. following receipt of the Crown’s legal opinion.

[44] In the Interview, T.B. was not properly cautioned or given his/her right to counsel about matters for which he/she was a suspect. The task force officers knew this on February 18, 2016. Despite the qualification of the opinion of the Crown, they did not seek further clarification. In my view, the Crown identified a problem and the police did not deal with it.

[45] The task force officers did not know about the promises made when they sought the opinion because they had not then watched the tape or reviewed the transcript of the entire Interview. In my view, once they saw the qualifications contained in the opinion and the identification of a problem about possible confidentiality, it was incumbent on them to watch the whole Interview to ensure no such promises were made. None of them actually watched the entire tape. Ever. However, they did watch enough of it to discern that T.B. had “ratted out” his/her colleague, a colleague whom I refer to Mr./Ms. X. The task force officers watched enough of the Interview to determine that they might try to use the information which T.B. disclosed in a subsequent interview of Mr./Ms. X. In fact, they specifically used the fact that T.B. had “ratted out” Mr./Ms. X. in an eventual interview with Mr./Ms. X. This is the problem for the Crown on this application.

[46] Also, the Crown’s opinion of February 23, 2016, gave specific direction to the police about what full and frank disclosure of the deception tactic might be given to any judicial officer deciding to issue warrants based on information obtained from the Interview. In their testimony before me, the task force officers frankly admitted that they did not follow this advice. This is also a problem for the Crown on this application.

[47] When police deliberately employ deception in interviewing a suspect without advising the suspect that he or she is a suspect or without advising the suspect of his or her right to silence, legal consequences flow from the use of the deception. Such conduct may also have unintended consequences. When police deliberately deceive a citizen, a suspect, a non-suspect, an accused or otherwise, there are consequences that our society would want to see flowing from the fruits of that deception.

[48] One such consequence is the use to which information arising from such deception may be put in a trial of an accused person. I have not been tasked with deciding that issue and therefore do not dwell on it here. Needless to say, in this application, the Crown was clear that the Interview would not be relied upon in further matters involving T.B. However, I do not find that assurance good enough or an appropriate remedy given what happened to T.B. while he/she was in custody awaiting trial on the charges subject to this application.

[49] The difficulty for the police actions arises from the fact that portions of the Interview were shown to Mr./Ms. X.

[50] To recap my findings about the first essential interaction, T.B. was a confidential informant; the police did not believe him/her to be a confidential informant; the police were wrong in this belief. It was an appropriate tactic for the interviewing officer to have deceived T.B. by continuing the Interview without turning off the recording device despite having agreed to do otherwise. However, that decision created limits on the use of the fruits of the Interview. The police obtained a legal opinion that turning off the tape was appropriate. That opinion relied on limited facts including the non-disclosure of the deception tactic and non-disclosure of confidential aspects of the Interview. The fact that the police did not disclose to the Crown the confidential aspects of the Interview, namely that T.B. had sought to inform on others for other serious crimes, does not justify the subsequent police reliance on that opinion as a basis for their subsequent actions.

[51] The legal opinion was clearly qualified. It pointed out problems that may arise if confidential matters were disclosed. It also gave express directions about full and frank disclosure of the contents of the Interview to subsequent reviewing judicial officers. Those directions were not followed. This failure, as well as the failure to review the entire Interview so that a full and fair appreciation of it could be obtained, severely limited its lawful use in the further investigation of T.B. It is this subsequent use to which the police put the Interview that I find breached T.B.’s s. 7 Charter rights. It is this use that I find constitutes an abuse of process.

The Second Essential Interaction: The Police Interview of Mr./Ms. X on May 12, 2016

[52] Mr./Ms. X. was a friend of T.B. The task force officers had seen Mr./Ms. X and T.B. together in a car. This was just prior to T.B. failing to attend court and shortly before he/she was arrested on February 18, 2016. Mr./Ms. X. had done something unusual involving his/her cellphone in a courtroom relating to T.B.’s failure to attend court that garnered significant attention from a Crown involved in the unrelated matters for which T.B. was charged. Mr./Ms. X also became a suspect for a time in the serious crimes of which T.B. was ultimately charged.

[53] T.B. was charged on May 10, 2016. On May 12, 2016, the police arrested Mr./Ms. X. and took him/her to a police station for an interview. He/she was not formally charged with anything at that time. One of the task force officers who was involved in conducting the interview testified that had Mr./Ms. X. asserted his/her right to silence and remained silent, he/she would simply have been released and not charged.

[54] The interview with Mr./Ms. X. was fairly wide-ranging. It was screened in its entirety before this court during the application. It was conducted by two task force officers. The language used is informal. It is evident that the officers made it clear that Mr./Ms. X. was a suspect of a very serious crime. They informed Mr./Ms. X. that T.B. had placed him/her at the scene of those crimes. This is not done casually by the officers.

[55] Mr./Ms. X. clearly expresses disbelief that T.B. would inform on him/her. Shortly after this exchange the officers say, “T.B. said …,” using Mr./Ms. X’s nickname, “… that [he/she] is the [person] who planned the [serious crimes].” The officers then tell Mr./Ms. X. that T.B. expressly used his/her government name and they say the name aloud. At that point, Mr./Ms. X. asks if this was done on video. The police say it was and that they have the video. Mr./Ms. X. asks to see it. The police oblige.

[56] Before they show Mr./Ms. X. the tape, they taunt him/her (my characterization) by asking whether it would “piss [him/her] off” to be shown a video of himself/herself being “ratted out” by T.B. Mr./Ms. X. agrees that it would piss him/her off. Later, he/she is asked by the officers how he/she feels about being “ratted out” (my characterization). Mr./Ms. X. responds in street language that I understand to mean that he/she wanted to immediately avenge himself/herself on T.B. One of the interviewing officers then says that what T.B. has done is “nasty.” I understand this language to mean “really, really bad” and not “nasty” in the way you would say to a toddler that what it was doing was improper.

[57] Ultimately, the portions of the Interview where T.B. “rats out” Mr./Ms. X. are shown to Mr./Ms. X. In fact, after further back and forth with the interviewing officers, Mr./Ms. X. asks to watch the tape again. The police oblige. Throughout, Mr./Ms. X. denies that he/she was involved in the matters in which T.B. had implicated him/her.

[58] The officers tell Mr./Ms. X. that they are going to show the Interview to “five, six, seven of these people” who have been implicated by T.B. Closer to the end of the interview, Mr./Ms. X. says that he/she is going to talk to T.B. about what T.B. is saying about him/her and others. Shortly after this, the interview ends. Mr./Ms. X. is released unconditionally.

[59] Seeing how the interview with Mr./Ms. X unfolded, I find that the interviewing officers were very much in control of the interview process and its contents. They had a laptop computer at hand and had queued up the tape to the sections involving Mr./Ms. X. Given the length of the Interview, it would have taken some degree of preparation and forethought to have the right segments so readily available once Mr./Ms. X.’s interview began. Yet the evidence of the four task force officers was to the effect that they did not see the interview with Mr./Ms. X as important at all. I do not accept this evidence. I find that the officers’ control of the interview process and contents evidences that their decision to show the Interview to Mr./Ms. X. was an important tactical one and that they made it beforehand.

[60] Mr./Ms. X. was not a random person or suspect. The police knew of his/her close ties to T.B. Also, Mr./Ms. X. had been convicted of a prior similar offence like the one T.B. has been charged with in this matter. It seems, the police must have had a degree of forethought or purpose in showing Mr./Ms. X. parts of the Interview. Certain officers testified that their purpose was to attempt to have Mr./Ms. X. confess to the serious crime. Interestingly, this evidence was contrasted with that of the lead detective on the task force who testified that he/she did not know that Mr./Ms. X. had been shown the Interview. He/she testified that this came as a surprise to him/her and that the first time he/she heard of it was while being cross-examined before this court. I find this assertion incredible in the face of all the other evidence – particularly that of the interviewing officer who said that Mr./Ms. X. would have been unconditionally released had he/she simply asserted his right to silence.

[61] Having watched the interview with Mr./Ms. X., I find that the police consciously prepared to show him/her portions of the Interview. They did not disclose to Mr./Ms. X. that T.B. had asked to have the tape turned off. Seeing oneself being “ratted out” is bad enough for anyone, let alone a person with a serious criminal record. However, it seems to me that the police exacerbated the effect of T.B.’s actions by failing to tell Mr./Ms. X. that T.B. had thought that he/she was off camera. I find it was outrageous and unfair of the police to have shown Mr./Ms. X. the Interview, particularly when they seemed to have had no desire or basis to charge him/her, short of him/her confessing to the crimes on the spot.

[62] In the circumstances of the allegations against T.B., I find the possibility of Mr./Ms. X. confessing on the spot an incredible or seriously unreasonable prospect. It was doubly deceptive for the police not to at least have told Mr./Ms. X that T.B. thought he/she was not being recorded. I think the police had no belief whatsoever that Mr./Ms. X. would confess.

[63] I find that the interview with Mr./Ms. X. was a set up by the police to ensure that what T.B. had told them about other persons alleged to have committed criminal acts was communicated to the criminal element at large. I say this because it simply does not make sense for the police to show Mr./Ms. X. the Interview and then not charge him/her with the crimes at issue, unless they had no intention to charge him/her in the first place. The precarious position of an informant is well known. A couple of times during the presentation of evidence the phrase “snitches get stiches” was put to a number of the witnesses. Several of them acknowledged they had heard the phrase before. In my view, I need no further proof of the meaning of this axiom.

[64] The jurisprudence recognizes the sacrosanct position of confidential informants. The jurisprudence recognizes the very real possibility that harm will come to confidential informants if their identity is revealed (see R. v. A.B., 2015 ONSC 5541, [2015] O.J. No. 4597, at para. 2). “Rats,” informants, are reviled by the criminal community. It is trite to say that informing is practically a death sentence to a criminal career if that fact becomes known in the criminal community. Retribution is exacted in various degrees and can include death. Prior authority establishes that courts, the police, the crowns, and defence counsel are duty-bound to protect the identities of confidential informants. In my view, the interview with Mr./Ms. X. and the showing to him/her of the Interview represented a deliberate and blatant breach of T.B.’s privilege by the police. It is conduct which would not be condoned by society at large. It represents an abuse of process.

The Third Essential Interaction: the January 10, 2018 Assault on T.B. at an Ontario Provincial Jail.

[65] There was no issue between the parties that T.B. was assaulted at an Ontario Provincial Jail on January 10, 2018. There was no issue that T.B. suffered serious personal injuries mostly to his/her face during the assault. The assault occurred while T.B. was watching T.V. in the common area of a range that was being video-surveilled. The footage of the assault was screened during the application. There was no audio. However, the images were quite clear.

[66] Three other inmates stalk, circle and then attack T.B. The assault appears pre-meditated. The attackers slash T.B.’s face with razor-like weapons. They do not linger. They attack and then quickly retreat to a toilet area. They attempt to flush away their weapons before prison guards rush onto the range.

[67] T.B. testified that the assailants called him/her a “rat” and a “rat goof” during the assault. T.B. testified that a “goof” in jailhouse parlance is the equivalent of being called a pedophile or a rapist: the lowest of the low on the prison pecking order. T.B. also testified that one of the assailants said, “We told you, you were going to get it.” There was no other evidence about what was said during the assault.

[68] There was evidence about what was said once the guards intervened and the three assailants were removed from the range along with T.B. One of the guards confirmed that being called a “goof” is one of the worst things that can be said by one inmate to another. There was a dispute in the oral evidence about what exactly was said to T.B. by his/her assailants as they were led away. The evidence by the guards ranged from “I didn’t hear anything specific” being said to “they were laughing at T.B. as [he/she] was saying obscenities to them, and then two of them fist-bumped in response to being called “[a perjorative]” by T.B.” One of the guards vaguely remembered the words “goof” being uttered by one of the assailants. A written incident report of another guard, entered on consent, confirmed that two of the assailants congratulated each other on a job well done. As well, this report confirms that the assailants were also “yelling comments to the effect of ‘Good, you got what’s coming Goof!’”

[69] There was no direct evidence that connected the assailants to Mr./Ms. X. T.B. gave hearsay evidence about the rationale for the assault. I am not prepared to rely on that evidence for the purpose of proving the connection.

T.B.’s credibility

[70] T.B. and his/her sibling gave ample testimony about the actions of those involved in this prosecution: the Crown; the police who arrested him/her, interviewed him/her and interacted with him/her; and his/her own lawyers. I find most of what he/she said during this matter incredible. I explain why below. However, I do believe his/her evidence about what was said to him/her during the assault. I also believe his/her testimony that he/she thought his/her identity would be protected once he/she began to inform on other criminals to the police.

[71] As far as the evidence about what exactly was said during the actual beating, I believe T.B.’s testimony for the following reasons. First, the evidence was limited and related to a specific event, an event which I did watch on video, albeit without audio. I believe T.B.’s evidence that his/her three assailants yelled epithets and accusations at him/her. I believe T.B.’s testimony that they called him/her a “rat” and a “rat goof.” To me those are important epithets to be hurled at a confidential informant in the course of a jailhouse beating. They are the worst things that can be said aloud to an inmate in earshot of other inmates.

[72] I watched the video of the attack. The three attackers appeared to have planned what they were about to do, and what they did was deliberate. T.B. was not a “target of opportunity.” Also, the assailants did not linger once the attack ended. The attack was quick. The assailants damaged T.B.'s arms and face, then fled to dispose of their weapons. It seems that if the attack were designed to do more than deliver a message, the beating would have continued until the guards intervened. As seen on the video, the attack takes about 10 seconds. The assailants were well able to do their work and then "escape" towards the toilets before the guards rushed in about 10 seconds after the attack starts.

[73] T.B. testified that the verbal assault continued once the assailants were apprehended and being led away from where the attack occurred. Again, the comments were in the nature of accusing T.B. of being a “rat.” The assailants’ comments post-attack were confirmed by some of the guards who gave evidence on this application. I know from other evidence that T.B. was a “rat.” He/she informed police about other criminals during an occasion when he/she expected his/her identity to be kept confidential. Ultimately, his/her identity was revealed to an associate who had a criminal record.

[74] T.B. suffered injuries to his/her face, but not his/her torso. Facial scars tend to be more obvious to others long-term. For me, the directed nature of the attack evidenced an intent by the assailants to mark T.B. ostensibly for the long-term. It was designed to alert others that something of a serious nature had happened to T.B. In my view, serious career criminals process some information differently than do law-abiding persons. T.B.’s injuries were designed to mark him/her for the future. This is consistent with the assailants calling him/her “a rat” and a “rat goof” during the attack.

[75] The value to a confidential informant of informing on other criminals is to remain anonymous to the criminal community. Once that anonymity is lost, the confidential informant is exposed to many personal dangers. The evidence that the attackers were sending a message to T.B. to punish him/her for informing is credible. They also wanted to mark T.B. for the long-term so that his/her own criminal career would be compromised. This does not make sense if one believes there are no such things as career criminals. However, it seems that there are persons who ignore the possibility of “going straight” and who continue lifelong criminality regardless of society’s and the justice system’s best intentions.

[76] Given the evidence I heard about T.B.’s past, it seems that he/she had not yet decided to try making an honest living as of February 2016. He/she still had both feet planted solidly in a life of crime. He/she made constant reference to this during the Interview. I find that he/she had no incentive to lie about what was said to him/her while he/she was being attacked because his/her evidence was consistent with the methods of the attackers. The assailants wanted to seriously injure T.B. in a way that would endure beyond the healing of the cuts that were inflicted on him/her. Therefore, I believe the assailants called him/her a “rat” and “a rat goof” during the assault. These are very serious words in the context of an assault done with a particular design. While I did not have the benefit of the testimony of the assailants, I am confident that I can ascertain their design by the results they achieved and by having seen how they did it. I therefore believe T.B.'s testimony about the beating and what was said to him/her.

[77] For the following reasons, I do not believe T.B.’s other evidence about the other events (save the Interview) of which he/she testified. T.B. is a self-admitted fraudster. He/she admitted this during cross-examination. He/she has a lengthy criminal record of offences involving deception. One of his/her former counsels, called as a Crown witness, described him/her as highly intelligent and manipulative. It was clear from the interactions described by the evidence of his/her two former counsels, called by the Crown, that T.B. wanted to direct how his/her case was conducted. While clearly this was his/her right, his/her directions to his/her counsel pointed them down roads of irrelevancy. When counsel tried to focus on what they thought would be more productive, T.B. became angry and terminated their retainers. T.B. sought ways to assist his/her defence which simply did not exist. When his/her lawyers would not play along, he/she fired them.

[78] I find that T.B. was obsessed with conspiracy theories about police and Crown conduct that were not borne out by the evidence of the Crowns or the police. However, this finding does not extend to T.B.’s theory that he/she was deliberately deceived by the officer conducting the February 18, 2016 interview. I discuss this in detail below.

[79] T.B. gave ample evidence about what he perceived to be Charter-offending conduct by a Crown attorney assigned to prosecute him/her. Those charges were stayed by the Crown and were unrelated to this matter. I do not accept T.B.’s evidence on that particular issue. I find his/her assertions about the conduct of the Crown incredible. I say this because of the testimony I heard from the Crown who testified, the documentary evidence tendered about the pretrial process surrounding the charge and the evidence of T.B.'s counsel at that time regarding the way this unrelated case was conducted. This evidence substantially contradicted T.B.'s. I prefer the evidence of the Crown and the defence counsel. Their evidence made sense in light of the documentary evidence that was placed before me.

[80] Central to T.B.'s evidence was an assertion that the Crown was prepared to offer him/her a particular sentence for the charges before this court. T.B. asserted that the Crown threatened to release the Interview unless he/she agreed to plead. I do not accept his/her evidence. It makes no sense in light of the testimony of the two lawyers most directly involved in that prosecution and the documentary evidence of both their files. Ultimately, this particular conduct did not form part of T.B.'s submissions as to why he/she should obtain relief in this matter. I think this was a reasonable concession on the part of counsel. However, T.B. was quite adamant in giving his/her evidence that things happened on this unrelated file in a particular way. He/she was not credible in this evidence.

[81] I also do not accept any of the evidence given by T.B.'s sibling. I do so because the majority of the sibling's testimony was hearsay. It also dealt with issues that were not directly related to the three main interactions which I find relevant to this matter. The sibling was participating in this file from afar, mostly. The sibling was attempting to assist T.B. by directing the actions of counsel. I find that the actions of the various counsel involved in this file, both Crown and defence, do not go to either the breach or the remedy that I am prepared to impose in this matter. The evidence of the sibling was therefore not helpful to me in resolving this matter.

Analysis

[82] I find that the showing of the Interview to Mr./Ms. X. by police was a serious breach both of T.B.’s confidential informer privilege and his right to security of the person under s. 7 of the Charter. I find it represented an abuse of process. It is a breach that calls for a remedy. I find that this is one of those clearest of cases noted in Babos.

[83] There was no direct evidence linking Mr./Ms. X. to the assailants. I nevertheless find, on the balance of probabilities, that T.B. suffered an assault in an Ontario correctional institution because of information that was available to other inmates. That information came from the revelations made to Mr./Ms. X while he/she was in police custody on May 12, 2016 that T.B. was a confidential informant. The circumstances of the attack, the connections between T.B. and Mr./Ms. X., and my findings that the police showed the Interview to Mr./Ms. X. to broadcast T.B.’s status to the criminal element: these are the parts of circumstantial evidence that I use to make this causal connection and finding of fact. This finding is made solely for the purpose of crafting an appropriate remedy for the above breaches in this application alone.

[84] Despite my findings concerning T.B.’s credibility in regard to a number of events referred to during his/her evidence on this application, I find his/her evidence about what was said during the attack to be credible. In particular, I find that his/her assailants called him/her a “rat” and a “goof.” From the evidence, T.B. clearly is a “rat.” I do not have sufficient evidence to find that he/she is also a “goof,” that term being described by T.B. as including “sex offender.” I make no findings in that regard. However, I accept his/her evidence and I find that he/she was called “rat” and “rat goof” by his/her assailants during the assault. I rely on the evidence of the guards who broke up the fight to corroborate that insults were exchanged between T.B. and the assailants. These insults included the word “goof.” I am prepared to accept this is an insult with particular meaning. It is a word reserved for the worst of the worst in the criminal world. I find that it was directed at T.B. during the assault. The use of these words and the deliberate nature of the attack as evidenced by the surveillance video ground my finding that T.B.’s status was compromised by the showing of the Interview to Mr./Ms. X.

[85] In its submissions, the Crown referred to other times where T.B. had sought to “rat out” other persons. These references were vague. They were not sufficient for me to draw any conclusions on a balance of probabilities that would lead me away from the conclusion that it was because Mr./Ms. X. was shown the Interview that T.B. was then targeted in an Ontario institution. What was not vague from the evidence was the contents of the Interview and its clear and careful disclosure to Mr./Ms. X..

[86] I find that the police had no lawful reason to show Mr./Ms. X. the Interview other than to make T.B.’s status known to the criminal underworld. I simply do not believe that the lead investigator was not briefed of the fact that Mr./Ms. X. was shown the Interview. This is because of how readily it was available, how quickly it was obtained by the interviewing officers and how they were able to set up the introduction of the Interview to Mr./Ms. X. The questioning of Mr./Ms. X. became more like a “briefing” to him/her, as the interviewing officers slowly introduced the idea that T.B. had “ratted out” Mr./Ms. X. The concept was introduced gradually and deliberately. The Interview was then shown. I cannot see this as anything but preplanned and deliberate.

[87] Also, because of the problems that the police knew they had with the “camera on/camera off” nature of the Interview, I do not accept their evidence that their interview of Mr./Ms. X. was unimportant. The officers sought legal advice. This of itself indicates that the Interview was a special circumstance. This special circumstance should have led to caution in its use. From the evidence, I find the investigating officers did know what they had in the Interview. They had T.B. being a “rat.” They had T.B. being a “rat” only after he/she thought he/she was not being recorded and while he/she was being offered the opportunity to “do business” with the interviewing officer, an officer who held himself/herself out to be “above” the officers who had arrested T.B. The interviewing officer both convinced and encouraged T.B. to believe that what he/she was saying was confidential. Watching the totality of the Interview leads me to this conclusion.

[88] I find that the task force officers knew that they had video evidence of T.B. that made him/her vulnerable. I find it inconceivable that they could testify that showing it to a convicted criminal like Mr./Ms. X. would be benign. I accept that in the criminal world and following into the ‘real world’ “snitches get stiches.” In other words, when the identity of a confidential informant is deliberately leaked to a person with connections to the criminal world, it is well within the realm of possibility that the informant will be subjected to attack leading to severe personal injury.

[89] I am not prepared to find that actions of the various Crowns who did or did not testify in this matter represented a breach of T.B.’s s. 7 rights. I say this because by the time the Crown was positioned to seriously review the Interview, it had already been shown to Mr./Ms. X. The opportunity to meaningfully mitigate this very serious breach had passed. In all the circumstances, I find that the act of showing Mr./Ms. X. the Interview was a serious breach of T.B.’s Charter rights. It was a breach in the nature of a clearest of cases as regards to remedy. I find it necessary for the justice system to disassociate itself from this conduct. This will lead to a remedy.

[90] The task force officers did not think that the interview of Mr./Ms. X. was significant. I find it unreasonable that the Crown who ultimately reviewed the entire transcript would not think to ask the police if it had been shown to anyone else. The Crown testified that it was their opinion that the Interview did not create an occasion where T.B. could believe that he/she was a confidential informant. My colleague and I disagree. However, in light of that predisposition, I think it is excessive hindsight to expect the Crown would have made further inquiries of the police. I am therefore not prepared to give any credence to the applicant’s submissions as to the alleged breach of duty or breach of Charter rights by the Crowns involved in this matter. It is therefore of little or no importance for the remedy on this application to consider what the Crown did or did not do in this matter.

[91] A senior Crown was asked to opine on the circumstances of the Interview before the Interview was shown to Mr./Ms. X. I find no issue rising to the level of a s. 7 breach in that Crown’s actions because the Crown was reasonably relying on the police to advise of the background. The police did not alert that Crown to the contents of the Interview. Accordingly, the Crown cannot bear responsibility or blame for the remedy at issue.

[92] I find that prejudice to the integrity of the justice system will be manifested, perpetuated or aggravated through the outcome of a trial in this matter. I say this because T.B. has now been in custody for almost four years. During that time, he/she was subjected to a serious attack designed as retribution because of what police did with information he thought would be kept confidential. T.B. testified that he/she did what he/she could to protect himself/herself while in custody from accusations that he/she was a “rat.” However, he/she was a “rat,” and he/she knew it as soon as he/she began to inform the police in February 2016. He/she also knew as of May 2016 that the police had lied to him/her and that they had him/her on tape “ratting out” a range of other serious criminals.

[93] T.B.’s decisions on how he/she directed his/her defence after that point was entirely his/her own. It appears his/her obsessions with other perceived conspiracies by the police prevented him/her from adequately communicating to counsel what had happened to him/her during the Interview. I do not fault any of the defence counsel for their actions in mounting their defence of him/her. Neither do I accept the Crown submissions that these interactions between solicitor and client are dispositive of the remedy that should be afforded T.B. in this case. I see it as irrelevant how T.B. directed counsel as far as the issue of remedy goes. Objectively, how T.B. acted during the Interview created a privilege for him. Occasionally, non-legally trained, (and maybe even legally trained) persons, do not recognize their status in the eyes of the law. Their lack of legal awareness does not diminish their status unless they expressly and with full knowledge of their status, waive their privilege. Despite the various directions in which T.B.’s instructions to his/her counsel took the proceedings, he/she never consented to the Interview being shown to a fellow criminal. I find that at no material time did T.B. waive his/her privilege.

[94] As this is a residual case, I find exclusively in this matter that the State through the police engaged in conduct that is offensive to societal notions of fair play and decency. The police encouraged T.B. to go out on a limb and then they sawed off the limb behind him/her. The damage of “falling to the ground from the sawed-off limb” was the severe beating that T.B. received while in custody. While T.B. was in custody, he/she could not effectively hide because he/she was in proximity to those who had the most motivation to harm him/her.

[95] I find that society at large would say that this case goes into the category of something the average person would not tolerate or see as fair, just, or appropriate police conduct. It is analogous to a hockey game where a puck-carrier has his or her head down and a defender delivers a shoulder-to-head check at centre-ice, at full speed in a no-contact game. It just is not done, and everybody who plays the game knows it. This is a clearest of clearest kind of case. In my view, the police conduct at issue on this application would shock the conscience of the community. This makes this case a clearest of clearest kind of case.

[96] The defence made a great deal about the fact that a lot of the evidence against T.B. was subsequently obtained relying on warrants obtained from information in the Interview. While the various Informations to Obtain were not before me, one of the task force officers admitted that they did not follow Crown advice – advice to give full and frank disclosure about how T.B. thought the tape was off – when judicial authorization to search certain premises was sought. I anticipate further litigation by the defence on this issue. All the while, T.B. would remain in custody.

[97] I do not see any way of ‘putting the genie back in the bottle’ short of granting what the applicant seeks. Clearly members of the criminal underworld believe T.B. is a “rat.” What has happened to T.B. has gone beyond mere insults or innuendo. Some criminals have tried and succeeded to harm him/her. My writing a judgement is not going to fix what criminals think of T.B., now or in the future. He/she is branded a “rat.” That brand is dangerous to his/her personal safety when it comes to other criminals. T.B. is in this position because of police action. A serious remedy for a serious breach is required.

[98] I do not see the Crown’s concession that the Interview will not be used any further in this prosecution as anything approaching a genuine remedy for what has occurred here. I do not accept the Crown’s submission that I could remediate the damage by simply making a sentencing recommendation. This is a non-remedy because it offends the principle that they who hear must decide. A trial judge’s discretion on sentence would be improperly fettered by anything I would attempt to do if I accepted that approach to remedy.

[99] I find the conduct related to the showing of the Interview to Mr./Ms. X so egregious that allowing the continuation of the prosecutions of the various charges, referred to in this application, would be offensive to the conscience of Canadian society. Short of a stay of proceedings, there is no way to erase the stain T.B. placed upon himself/herself or the jeopardy he/she put himself/herself in with the encouragement of the police, once his/her actions as an informant were knowingly disclosed. It seems to me that in fairness, the police could have simply warned T.B. during the Interview that whatever he/she said could not be kept confidential. Again, while this is easy to say with the benefit of hindsight, it just seems like common sense for the interviewing officer to have done it at the time, except if his/her only intention was to try to develop more leads. The Interview was used for a great deal more than that.

[100] The poison that was revealed during the Interview was turned back against T.B. with devastating and long-lasting effect. As in the journey metaphor I referred to above, the police went down a particular road once the Interview began. How they decided to go took them a long way down a certain route. But the journey and the decisions they, alone, made put them in a place where they could not go back or pretend that they had not gone to that place – without those decisions having serious repercussions and imposing on them a duty to be very careful with what was done with the fruits of the Interview.

[101] This was a rare case where a confidential informant’s identity was disclosed advertently. Crowns and police routinely resist disclosing any information that might remotely identify a confidential informant during a criminal proceeding. Yet in this case, the police deliberately, blatantly, and calculatingly disclosed T.B.’s identity and the fact that he/she had “ratted out” other criminals to another person with a serious criminal record: Mr./Ms. X.

[102] I am alive to the Crown’s submissions that T.B. is alleged to have been a willing and directing mind of violent actions against a number of members of the community. The allegations against him/her are serious. This case is very significant. T.B. came to be charged because of information police obtained in the Interview, and then evidence they could collect because of search warrants that they were granted using information from that Interview. Those search warrants were obtained without the full disclosure that T.B. thought the tape was turned off and that he/she was expecting his/her identity to remain confidential. This result gives me a great deal of concern. It was also a step along the journey that the police took because of what they decided to do with the results of the Interview.

[103] During submissions, I was directed to other defence applications regarding this evidence. Those applications are awaiting the result of this application. Those applications are moot as the result of the stay of proceedings that is being granted on this application.

[104] In deciding to grant a stay, I have considered the balance between society’s interests in having these matters tried on their merits against what has happened to T.B.. It was a close call. However, it seems to me that the police conduct in this matter was so egregious that there simply is no way in good conscience that the proceedings against T.B. can be allowed to continue. This is the only way going forward that the justice system can disassociate itself from this conduct.

[105] I received a submission from the Crown that certain other charges now faced by T.B. and dealt with in indictments which were covered by the application had nothing to do with the information given during the Interview. However, I cannot ignore the concession made by the Crown that the investigation of this particular crime was connected to evidence found at T.B.’s residence relying on search warrants obtained from the information contained in the Interview. The cases are not connected. Yet, I see T.B.’s continued incarceration as representing affirmation by this court of the conduct that led to him/her being attacked while he/she was detained pending this application.

[106] My ruling does not mean T.B. now has some kind of special immunity in the future. The remedy will relate only to the charges before the Court. But it will relate to all charges referred to on this application. In my view, it is a fulsome, complete and generous remedy in light of everything that has occurred in this matter and in the spirit of the caselaw as articulated in Babos.

[107] In my view, given the protections afforded by our law to confidential informants, there can be no other remedy for the State’s breach of T.B.’s privilege, violation of his/her s. 7 Charter rights, and abuse of process other than to order a stay of all prosecutions currently in place against T.B. and referred to in the evidence before me.

[108] The application is therefore granted.

[109] I asked counsel for submissions on any terms they would seek on the publication of these reasons. They made those submissions and I have reflected most of them in this judgment.

“original signed by” The Hon. Mr. Justice F.B. Fitzpatrick

Released: March 20, 2020