COURT FILE NO.: CRIMJ(P) 1981/19

DATE: 20200828

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Mr. R.A. Cornelius and Mr. T. Powell, for the Crown / Respondent

• and -

GURRAJ BASSI, KARANVIR BASSI, HARMINDER BASSI, and GURYODH SINGH KHATTRA

Mr. L.P. Strezos and Ms. K. Davidson for Mr. Khattra/ Applicant

HEARD: June 24, 2020, via Zoom videoconference

INFORMER PRIVILEGE

(PRELIMINARY RULING)

Stribopoulos J.

Introduction

[1] Mr. Khattra, along with his three co-accused, is charged with first-degree murder in the death of Paviter Bassi. Their trial was to take place in May 2020. However, as with all criminal matters in the Superior Court of Justice this spring, the COVID-19 pandemic necessitated the trial's adjournment. Given the uncertainty surrounding when jury trials will resume, a new trial date remains to be scheduled.

[2] In anticipation of his still to be scheduled trial, as the case management judge, I heard an application for disclosure brought by Mr. Khattra. Ultimately, Mr. Khattra seeks an order to compel the Crown to disclose to him all relevant information provided to the police by a confidential informer, including disclosure of the informer's identity.

[3] These reasons will proceed in two main parts. The first part provides a factual overview of the evidence in this case, including the details disclosed thus far regarding the information provided by a confidential informer to the police. The second part begins by briefly setting out the law of informer privilege, including the rules and procedures governing efforts to pierce it, before summarizing the parties' positions and then addressing the issues raised.

I. Factual Overview

a) The murder of Paviter Bassi

[4] In the early evening of March 19, 2018, at an intersection in a residential neighbourhood in Brampton, three vehicles surrounded a pick-up truck driven by Paviter Bassi. After he was boxed-in, Paviter Bassi exited his pick-up truck and ran away from the intersection. Four men emerged from the three vehicles and gave chase.

[5] At approximately 5:49 p.m., Paviter Bassi ran onto the grounds of a high school not far from the intersection. Surveillance video from the school captured from a distance what happened next. It shows four men pursuing Paviter Bassi, with one man eventually grabbing him and throwing him to the ground. All four attackers then surround Mr. Bassi and appear to be kicking and punching him. The timestamp from the surveillance video reveals that the attack lasted less than 30 seconds before the four assailants fled. Unfortunately, the surveillance camera was too far from where the assault took place to permit an identification of the assailants from the recording.

[6] During the assault, Paviter Bassi was stabbed twice in the chest. One stab wound damaged his heart, while the second perforated his diaphragm and injured his liver. The day after the assault, these wounds caused Paviter Bassi's death. Additionally, a post-mortem examination revealed that Paviter Bassi also suffered six further stab wounds and several blunt force injuries.

[7] Initially, five men were arrested and charged with Paviter Bassi's murder. Mr. Khattra, his three co-accused (Gurraj Bassi, Karanvir Bassi, Harminder Bassi, who are all cousins) and Harman Singh.

[8] Although his three co-accused are still jointly charged along with Mr. Khattra, counsel advised that each is likely to plead guilty to a charge of manslaughter in the death of Paviter Bassi. At this point, it remains unknown whether any of the three co-accused will testify at Mr. Khattra's trial. (Should they plead guilty, as anticipated, each would be compellable by either the Crown or the defence.)

[9] It is the position of the Crown that Mr. Khattra was the assailant who stabbed Paviter Bassi and that he is guilty of first-degree murder.

b) Harman Singh implicates Mr. Khattra and his co-accused

[10] The case against Mr. Khattra, at least at present, depends primarily on the evidence of Harman Singh. As mentioned, Mr. Singh was initially arrested and charged along with Mr. Khattra and his three co-accused.

[11] In October 2018, however, Mr. Singh and the Crown entered an agreement, in which he agreed to co-operate with the authorities, and the Crown agreed to withdraw the charge against him. After he provided a videotaped sworn statement to police, the Crown withdrew the charge of first-degree murder against Mr. Singh on November 1, 2018.

[12] Eventually, at the preliminary inquiry, Mr. Singh provided testimony of critical importance to the Crown's case. The Crown intends to call Mr. Singh as a witness at Mr. Khattra's trial. Mr. Singh's evidence implicates Mr. Khattra, along with his three co-accused, in the murder of Paviter Bassi.

[13] Mr. Singh alleges that on the date of the murder, he came to be in a vehicle, with Gurraj Bassi and Mr. Khattra, parked on a residential street in Brampton. At the time, he was friends with Mr. Khattra and was only acquainted with Gurraj Bassi. According to Mr. Singh, the men had gotten together to smoke some marihuana. While preparing to do so, Mr. Singh reports that Gurraj Bassi told them about being hit with a baseball bat the day before by "Paviter and some of his boys." He also showed them swelling to his face from the attack.

[14] According to Mr. Singh, as they sat in the car, preparing to smoke marihuana, Gurraj Bassi either received or made a call on his cell phone. From what he overheard, it sounded to Mr. Singh as though Gurraj Bassi and the person he was speaking with were talking about finding Paviter Bassi. After receiving a further telephone call, Gurraj Bassi started the car and began driving quickly.

[15] As he drove, Gurraj Bassi continued talking with someone on his phone. He was saying things like, "stay behind him," "where are you?" and "follow him." Mr. Singh claims that he asked Mr. Khattra, who was in the front passenger seat, what they were doing, but Mr. Khattra just waved him off because he was trying to listen to the telephone conversation. Mr. Singh surmised that they were trying to find Paviter Bassi.

[16] According to Mr. Singh, after navigating various streets at high speed, while still talking on the phone, Gurraj Bassi eventually pulled in front of and cut-off a pick-up truck that Paviter Bassi was driving. Simultaneously, a pick-up truck driven by Harminder Bassi pulled alongside Paviter Bassi's truck, while an SUV driven by Karanvir Bassi pulled in behind him. The three vehicles effectively boxed in Paviter Bassi's pick-up truck. (According to Mr. Singh, he knew all of the participants and could readily identify each of them.)

[17] Once the vehicles came to a stop, Mr. Singh describes both Mr. Khattra and Gurraj Bassi immediately exiting their vehicle. Mr. Singh acknowledges getting out of the car briefly because he thought Paviter Bassi could still ram Gurraj Bassi's vehicle. Instead, he saw Paviter Bassi exit his truck and run towards the field of a nearby school.

[18] Mr. Singh alleges that Mr. Khattra, Gurraj Bassi, Harminder Bassi and Karanvir Bassi all pursued Paviter Bassi onto the field. As they ran, Mr. Singh says he could see that Gurraj Bassi had a black baton in his hand and that Karanvir Bassi was carrying a baseball bat. He did not observe either Mr. Khattra or Harminder Bassi carrying any weapons.

[19] On Mr. Singh's account, he did not want anything to do with the attack on Paviter Bassi. As a result, he stayed at the intersection and returned to the backseat of Gurraj Bassi's vehicle. From that vantage point, he claims to have witnessed Mr. Khattra, Gurraj Bassi, Harminder Bassi and Karanvir Bassi, all beating and kicking Paviter Bassi. He assumed the attack was in retaliation for Paviter Bassi assaulting Gurraj Bassi the day before. The attack on Paviter Bassi took place quickly, and in its aftermath, all of the assailants returned to their vehicles and fled the scene.

[20] On their return to the car, Mr. Singh claims that Gurraj Bassi did not have the black baton he had seen him with during the chase. According to Mr. Singh, he said that he had hit Paviter Bassi with it on the head and that it broke or shattered.

[21] Mr. Singh maintains that Mr. Khattra, once again in the front passenger seat, initially did not say anything after returning to the vehicle. However, Mr. Singh alleges that, during the drive, Mr. Khattra handed him an iPhone. The phone was locked. Mr. Singh knew that Mr. Khattra did not own an iPhone, so he assumed the phone belonged to Paviter Bassi. According to Mr. Singh, he did not want anything to do with the phone, given what just transpired, and tossed it back to Mr. Khattra.

[22] As they drove, Mr. Singh alleges that Mr. Khattra said that he "sliced" Paviter Bassi on the head and that he also "poked" him. Mr. Singh understood the latter comment to be an admission by Mr. Khattra that he stabbed Paviter Bassi. Eventually, the three men all went their separate ways.

[23] According to Mr. Singh, he met up with Mr. Khattra again on March 21. On that day, he says he picked up Mr. Khattra at his request. He alleges that Mr. Khattra said that he wanted to see if the knife was still where he threw it. After they left the scene the preceding day, Mr. Singh did not see Mr. Khattra dispose of a knife. However, given Mr. Khattra's desire to retrieve the knife, Mr. Singh assumed he must have thrown it from the vehicle at some point after the attack. Mr. Singh claims that Mr. Khattra eventually directed him to stop his car in an alleyway that gave access to a field. Mr. Khattra left the car for about five minutes, and on his return, reported that he had retrieved the knife but did not show it to Mr. Singh.

[24] That day, they continued to hang out together until they learnt that evening that the police had raided Mr. Khattra's house and were looking for him. At that point, Mr. Singh claims he dropped Mr. Khattra off in the area where he lived so that he could surrender to the police (which he did that evening).

c) DNA evidence implicates Karanvir Bassi and Harminder Bassi

[25] On March 20, 2018, police executed a search warrant at the home of Karanvir Bassi. They seized a pair of Karanvir Bassi's shoes, which were bloodstained. DNA analysis determined that the blood was that of Paviter Bassi.

[26] On March 23, 2018, police also executed a search warrant at the home of Gurraj Bassi. They seized a pair of Gurraj Bassi's shoes, which were also bloodstained. DNA analysis determined that the blood was that of Paviter Bassi.

d) Paviter Bassi's missing iPhone

[27] During their investigation of the crime scene, police did not find Paviter Bassi's iPhone in his truck, on his person, or in the field where the attack took place.

[28] It appears that one of the assailants took Paviter Bassi's iPhone at some point during or right after the attack. That conclusion finds support in the combination of Paviter Bassi’s telephone records and his cousin's testimony regarding telephone calls he received from Paviter Bassi the evening of the attack, including his evidence that their final call disconnected suddenly. Further, the timestamp from the surveillance video shows Paviter Bassi entering onto the school field just as the call with his cousin disconnected. Together, all this evidence supports a somewhat irresistible inference that one of the assailants took Paviter Bassi's iPhone.

[29] According to Mr. Singh, on the evening of March 21st, right before he dropped Mr. Khattra off in the area of his home so that he could surrender to police, they discussed Paviter Bassi's iPhone. Mr. Singh alleges that Mr. Khattra told him that he had tossed the iPhone, "on Goreway, on -- towards Gurraj's house is like a forest area on the right." He claims that after telling him this, Mr. Khattra asked him to retrieve the iPhone.

[30] Mr. Singh claims he drove past the area described by Mr. Khattra but did not get out of his car because he did not know the precise location of the iPhone.

e) Information received from a confidential informer

[31] The Crown's disclosure to the defence included the notes of Detective Sergeant Baxter. The following entries appear in that officer's notes for March 21, 2018 (the day after the murder):

1622 - advised by [PC] Antonio that no phone was recovered from victim's truck

1635 - 1021 PC Wilson to speak to family for any cell phone number of victim

-> PC McCurley has been dealing with PC Paronuzzi from 21 CIB as he has a CI who advises MOTI is Harman Singh & that he took the victim's cell phone as it contained communications between victim & culprits

-> was tossed into greenbelt area along Cotrelle ->unknown anywhere specific -> Cotrelle is a long street

[Emphasis Added]

[32] During his testimony at the preliminary inquiry, Mr. Singh denied ever telling anyone that he took Paviter Bassi's iPhone or disposed of it.

f) Recovery of Paviter Bassi's iPhone

[33] On March 22, 2018, in apparent response to the information received from the confidential informant, Detective Sergeant Baxter requested a search of the area of Goreway Drive and Castlemore Road in the City of Brampton.

[34] That morning, P.C. Vaughan, an officer with the Canine Unit, attended the area. From his notes, it would seem that Detective Sergeant Baxter directed him to search on the west side of Goreway Drive.

[35] Within approximately 25 minutes of commencing his search, P.C. Vaughan located Paviter Bassi's iPhone. He found it sitting in some tall grass, close to a fence, on the west side of Goreway Drive, about 100 metres north of Cottrelle Boulevard.

g) Evidence from Paviter Bassi's iPhone

[36] Forensic fingerprint analysis of Paviter Bassi's iPhone revealed a single latent fingerprint impression suitable for identification. The fingerprint matches Mr. Khattra's left ring finger.

[37] Records relating to Paviter Bassi's phone revealed that he called a phone number connected with Mr. Singh in the days preceding his murder. On March 17, 2018, Paviter Bassi called that number twice. Then, at 9:08 p.m., on March 18, 2018, which would have been after Paviter Bassi and his friends assaulted Gurraj Bassi, he called that number again, with the call lasting 14 minutes.

h) Other information suggesting Mr. Singh's involvement

[38] On the application, the defence filed materials provided as part of Crown disclosure, which it argues provide a further basis for believing that the confidential informer has direct knowledge of Mr. Singh's involvement in the attack on Paviter Bassi.

[39] First, on March 29, 2018, PC Low swore an Information to Obtain a Production Order for phone records associated with several phone numbers that police believed to be relevant to their investigation. The affiant deposed, in part:

I reviewed confidentially sourced information in relation to cellular numbers associated to parties involved in the murder and learned the following:

a) Gurraj BASSI is associated to cellular number 647-980-2604

b) Paviter BASSI is associated to cellular number 416-912-3439

c) Karanvir BASSI is associated to cellular number 416-884-8706

d) Harmen SINGH is associated to cellular number 647-278-4245

e) Harminder BASSI is associated to cellular number 647-502-5871.

[Emphasis added]

[40] The affiant also explained that "[t]he informant has knowledge of the five numbers as the informant is familiar with each person and has regular contact with them (first-hand knowledge of the numbers associated to each person)".

[41] Further, the defence filed the notes of P.C. Saran. That officer has a notebook entry, dated March 21, 2018, which reads:

11:17 Cst. Morse # 3445 was enquiring about a person name of Harman Singh who is in Bassi Homicide. While doing background I came upon Occ# PR15066793 where Harman Singh (94/10/02) was arrested w/ Guryodh Singh who is believed to be connected to the investigation as well. SINGH is the possible stabber in this homicide.

[Emphasis added]

i) More recent disclosure regarding the confidential informer

[42] Since Mr. Khattra served and filed his disclosure application, the Crown prosecutors with the carriage of this case met with the police officer who is the confidential informer's handler. In the aftermath of that meeting, on March 10, 2020, the Crown emailed defence counsel, advising them as follows:

1. The confidential source(s) did not witness the occurrence at issue;

2. The information, that Harman Singh was the stabber, was a guess, on the part of the confidential source(s), and not based on any information received from other sources; and

3. The confidential source(s) received information from Gurraj Bassi, Harminder Bassi, and/or Guryodh Khattra. Aside from one, some, and/or all of the accused parties, the confidential source(s) did not receive any other information, from any source, about this occurrence.

[43] In response to this additional disclosure, on March 30, 2020, defence counsel wrote to the Crown to seek further clarification. On May 21, 2020, the Crown responded. Defence counsel's questions and the Crown's responses follow:

1.Did the handler meet with the Confidential Source between the filing of our application and your meeting with the handler? If so, was further information obtained, and on what date?

The handler spoke with the informant, after the filing of your application. The conversation was to confirm what information would tend to reveal the informant's identity and the additional information the Crown could disclose. No other substantive information was obtained, from the informant. The exact date of the conversation cannot be disclosed, as it could reveal who the informant is.

2. In addition, and in any event, when was the information conveyed to the handler that it was only "a guess" that Harman Singh was the stabber? This is not contained anywhere in disclosure;

The handler received this information as part of the original tip.

3.On what basis or information did the Confidential Source make this guess? As we read your email, it certainly must have been based on some information and knowledge.

The Crown cannot disclose this information, as it could reveal the informant's identity.

II. Law, Positions of the Parties, and Analysis

[44] After briefly setting out the law of informer privilege, including the rules and procedures which govern efforts to pierce it, this part will summarize the parties' positions before turning to address the issues raised.

a) Informer Privilege - Law and Procedure

[45] Informer privilege arises whenever the police receive information from a source in return for a promise, either explicit or even implicit, to keep that person's identity confidential: R. v. Basi, 2009 SCC 52, [2009] 3 S.C.R. 389, at para. 36; R. v. Barros, 2011 SCC 51, [2011] 3 S.C.R. 368, at para. 31; R. v. Named Person B, 2013 SCC 9, [2013] 1 S.C.R. 405, at para. 18.

[46] The class privilege insulating the identity of police informers from disclosure originates in well-established concerns for their safety, and to encourage others with knowledge of criminal wrongdoing to share such information with the authorities. Consequently, informer privilege not only greatly assists the police in the investigation of crime, but also helps to ensure the safety of the public. See R. v. Scott, 1990 CanLII 27 (SCC), [1990] 3 S.C.R. 979, [1990] S.C.J. No. 132, at pp. 994-995; R. v. Leipert, 1997 CanLII 367 (SCC), [1997] 1 S.C.R. 281, 143 D.L.R. (4th) 38, at paras. 10-12; Named Person v. Vancouver Sun, 2007 SCC 43, [2007] 3 S.C.R 253, at para. 16; R. v. Durham Regional Crime Stoppers Inc., 2017 SCC 45, [2017] 2 S.C.R. 157, at para. 12.

[47] To protect these vital interests, when the privilege applies, it precludes disclosure of any information that might tend to identify the informer: Named Person, at paras. 26, 30; Leipert, at paras. 17-18. The privilege belongs to both the Crown and the informer; neither can waive it without the other's consent: Named Person, at para. 25; Basi, at para. 40; Durham Regional Crime Stoppers, at para. 11.

[48] Informer privilege is "near-absolute" and an almost "complete and total bar" on disclosure, subject only to one critical exception, where the accused's innocence is demonstrably at stake: Basi, at para. 37; Named Person, at paras. 29-30; Durham Regional Crime Stoppers, at para. 14. The Supreme Court of Canada concisely summed up the "innocence at stake" exception and its rationale in Durham Regional Crime Stoppers, with Moldaver J. writing, at paras. 14-15:

[14] Informer privilege is of such fundamental importance to the criminal justice system and to society at large that it is "near-absolute" and is subject to only the innocence at stake exception: Basi, at para. 37; Barros, at para. 1. This exception provides that where disclosure of the informer's identity is necessary to show the innocence of an accused, the informer's identity can be disclosed for that limited purpose: Leipert, at para. 20. Our abhorrence of wrongful convictions requires no less. As such, the right of an accused to establish his or her innocence by raising a reasonable doubt takes precedence over protecting an informer's identity: R. v. Scott, 1990 CanLII 27 (SCC), [1990] 3 S.C.R. 979, at pp. 995-96.

[15] Apart from the innocence at stake exception, the informer privilege rule is absolute. Courts must give effect to it and are not entitled to balance the benefit of the privilege against countervailing considerations: Leipert, at paras. 12-13. Through informer privilege, the law recognizes that the public interest in protecting the identity of informants prevails over other policy concerns: see D. M. Paciocco and L. Stuesser, The Law of Evidence (7th ed. 2015), at p. 302. The police, the Crown and courts are bound by the rule and are under a duty to protect the informer's identity: Barros, at para. 37.

[49] The Supreme Court of Canada has established detailed rules and procedures for adjudicating claims that informer privilege must yield because the accused’s innocence is at stake. Although the regime originates in the Supreme Court's decision in McClure, a case involving solicitor-client privilege, courts, including the Supreme Court, have since made clear that it applies equally to efforts to lift the protective veil of informer privilege based on a claim that an accused's innocence is at stake: see R. v. McClure, 2001 SCC 14, [2001] 1 S.C.R. 445, at paras. 46-60; R. v. Marshall (2005), 2005 CanLII 30051 (ON CA), 77 O.R. (3d) 81 (C.A.), [2005] O.J. No. 3549, at para. 102, leave to appeal to S.C.C. refused, 2006 CanLII 31709 (SCC); R. v. Brassington, 2018 SCC 37, [2018] 2 S.C.R. 617, at paras. 36-38.

[50] If an accused seeks the disclosure of information that might tend to identify a confidential informer, he must first satisfy a threshold test, which, if met, only then engages the two-part innocence at stake test. The required steps and necessary analysis are as follows:

Threshold Test - the accused must establish that:

• the information he seeks is not available from any other source; and
• he is otherwise unable to raise a reasonable doubt.

If the threshold has been satisfied, the judge should proceed to the innocence at stake test, which has two stages.

Stage One: The accused seeking production has to demonstrate an evidentiary basis to conclude that privileged information exists that could raise a reasonable doubt as to his guilt.

Stage Two: If such an evidentiary basis exists, the trial judge should examine the privileged information to determine whether it is, in fact, likely to raise a reasonable doubt as to the accused's guilt.

See McClure, at paras. 48-60; R. v. Brown, 2002 SCC 32, [2002] 2 S.C.R. 185, at paras. 4, 29; Brassington, at paras. 37-38.

[51] Finally, the Supreme Court has also addressed the timing of applications to pierce informer privilege. It has explained that in "the usual case, it would be preferable to delay the McClure application until the end of the Crown's case" because that will "permit the trial judge to assess the strength of the Crown's case against the accused, and to determine whether the accused's innocence is, in fact, at stake.": Brown, at para. 52. In short, delaying the application helps ensure that intrusions on informer privilege only occur "when strictly necessary": Brassington, at para. 36.

b) Positions of the Parties

- Mr. Khattra's position

[52] Mr. Khattra maintains that he is innocent. Defence counsel, Mr. Strezos, argues that Mr. Singh has falsely implicated Mr. Khattra to conceal his own role in the murder. Mr. Strezos submits that, without disclosure of the informer's identity and the information the informer provided to the police, Mr. Khattra faces the risk of wrongful conviction.

[53] In seeking disclosure, Mr. Strezos makes two principal and alternative arguments. First, he argues that if an accused demonstrates that an informer is also a material witness, then the privilege yields and disclosure necessarily follows, without resorting to the rules and procedures established in McClure. In support of this position, Mr. Strezos relies on the following observation by McLachlin J., as she then was, in Leipert, at para. 22:

On the other hand, circumstances may arise where the evidence establishes a basis for the exception, as where the informer is a material witness to the crime or acted as an agent provocateur: see Scott, supra. Where such a basis is established, the privilege must yield to the principle that a person is not to be condemned when his or her innocence can be proved.

[54] Additionally, Mr. Strezos also points to the following comment by Binnie J., made for the majority in Barros, at para. 33:

... No protection is afforded to a "source" whose conduct goes beyond the provision of information and acts as an "agent provocateur" or is otherwise a material witness to the crime. Both the agent provocateur and the material witness play an active role in criminal investigations and proceedings that goes beyond "tipping" the police. Once a police informer goes into the "field" and acts as a police agent, the informer privilege is no longer applicable to prevent disclosure of his or her identity in respect of the events in which he or she acted as an agent ...

[55] Mr. Strezos submits that the record establishes that the informer is a material witness who incriminates Mr. Singh and, by implication, would assist in exonerating Mr. Khattra. In so arguing, Mr. Strezos relies on the entirety of the record on this application, including:

• That Detective Sergeant Baxter's note reveals that the informer identified Mr. Singh as the person who took the victim's iPhone;
• The evidence overwhelmingly suggests that Paviter Bassi had the iPhone on the field at the time of the fatal assault, meaning that one of the four assailants took the phone from him;
• The informer knew the assailants took the iPhone because it contained communications with the "culprits";
• Phone records reveal that Mr. Singh, not Mr. Khattra, had telephone contact with the victim in the days preceding the murder, consistent with Mr. Singh being one of the "culprits";
• The informer knew the iPhone was discarded and identified Mr. Singh as the person responsible;
• The informer knew the location where Mr. Singh discarded the iPhone;
• Within a day of the murder, police were identifying Mr. Singh as the "possible stabber."

[56] All of this, together, argues Mr. Strezos, establishes that the informer can incriminate Mr. Singh in the murder and, by implication, exonerate Mr. Khattra. The nature of the information is such, says Mr. Strezos, that the informer must have received it from either Mr. Singh or one of the other assailants. It follows, Mr. Strezos argues, that the informer is a "material witness." Therefore, the court should proceed to review the information over which the Crown claims informer privilege. If that review confirms that the informer is a material witness, the court must order disclosure.

[57] Alternatively, Mr. Strezos argues that even if the innocence at stake test from McClure applies, Mr. Khattra has satisfied both threshold requirements and the first stage of the test. Concerning the first prong of the threshold requirement, Mr. Strezos submits that the informer's evidence, incriminating Mr. Singh, is simply not available from any other source.

[58] Moving to the second prong of the threshold requirement, Mr. Strezos argues that Mr. Khattra will be unable to raise a reasonable doubt without the disclosure he seeks. He emphasizes the central importance of Mr. Singh's testimony to the Crown's case against Mr. Khattra. Mr. Strezos notes that the Crown will undoubtedly point to Mr. Khattra's fingerprint on the victim's iPhone as crucial corroboration of Mr. Singh's account. Absent the privileged information, Mr. Strezos insists that Mr. Khattra will be unable to effectively challenge Mr. Singh's credibility and raise a reasonable doubt.

[59] At the first stage of the innocence at stake test, Mr. Strezos essentially relies on the same evidence that he submits reveals that the informer is a material witness. He argues that the record establishes an evidentiary basis to conclude that privileged information exists that could raise a reasonable doubt about Mr. Khattra's guilt. It follows, Mr. Strezos submits, that the court should move to the second stage of the test and review the privileged information to determine whether it is likely to raise a reasonable doubt and should be disclosed.

- The Crown's position

[60] The Crown submits that the court should dismiss Mr. Khattra's application. Mr. Cornelius makes several arguments in support of that position.

[61] He begins by contesting that an accused is automatically entitled to disclosure of information concerning an informer where the informer appears to be a material witness. Instead, he argues there is only one route to the disclosure of information about an informer, which is the innocence at stake test found in McClure.

[62] Mr. Cornelius next argues that Mr. Khattra has not overcome the threshold test from McClure. First, he submits that Mr. Khattra has failed to establish that there is no other source for the information he is seeking. He argues that essentially the same information is available from Mr. Singh. Mr. Cornelius notes that Mr. Singh acknowledges handling Paviter Bassi's iPhone. He also eventually admitted – at the preliminary inquiry – that he knew in general terms where the phone was thrown. These admissions, combined with the phone records showing Mr. Singh having telephone contact with the victim in the days preceding the murder, Mr. Cornelius argues, provide Mr. Khattra with a means to effectively challenge Mr. Singh's credibility without the need to access the privileged information.

[63] Further, Mr. Cornelius submits that the record does not provide a basis to conclude that the informer places Mr. Singh on the school field or identifies him as the person who stabbed the deceased. He notes there is no evidentiary basis to conclude that P.C. Saran’s note that Mr. Singh was "the possible stabber" originates with information provided by the informer. (I note, however, that in the most recent disclosure, the informer confirms describing Mr. Singh as the "stabber" but says this was just a "guess.") Mr. Cornelius argues that the record only suggests that the informer said that Mr. Singh disposed of the iPhone because it contained communications with the "culprits" but did not report that Mr. Singh was one them.

[64] Turning to the second prong of the threshold test, Mr. Cornelius argues that it is far too early to conclude that Mr. Khattra will be unable to raise a reasonable doubt without disclosure of the information protected by informer privilege. Mr. Cornelius concedes that the Crown's case against Mr. Khattra very much depends on Mr. Singh's evidence. However, he argues that even without the information provided by the informer, the defence will still have much to work with when it comes to challenging Mr. Singh's credibility. Ultimately, argues Mr. Cornelius, the assessment of whether Mr. Khattra will be unable to raise a reasonable doubt without the privileged information should wait until the defence cross-examines Mr. Singh at trial using the evidence currently at its disposal.

[65] Mr. Cornelius also argues that the application is premature because much can change between now and the completion of the Crown's case, including the possibility of the case collapsing at some point along the way. Further, it remains to be determined whether the three co-accused will plead guilty. If they do, as expected, it is still unknown whether or not any of them will be witnesses at the trial and what they might say, should they testify.

[66] Mr. Cornelius submits that the court cannot conclude, at this early stage, that Mr. Khattra will be unable to raise a reasonable doubt unless he has access to the informer's evidence. In short, he argues, the application is premature.

[67] Even assuming that the court were to conclude that Mr. Khattra has established the threshold requirements, Mr. Cornelius goes on to argue that he has not met the first stage of the innocence at stake test. In short, Mr. Cornelius argues there is no evidentiary basis to conclude that the privileged information could raise a reasonable doubt. He makes two principal arguments in that regard.

[68] First, he says that Mr. Khattra's claim that the privileged information is exculpatory is premised entirely on speculation. He points out that Detective Sergeant Baxter's note does not indicate that the informer reported that Mr. Singh took the victim's iPhone at the time of the fatal assault. It only suggests that he took it at some point. The inference urged by Mr. Khattra, that Mr. Singh came into possession of the phone during the fatal assault, has no evidentiary foundation, says Mr. Cornelius. Nor does the officer's note support the conclusion that Mr. Singh was the person who discarded the phone. The officer only mentions that it was "tossed into greenbelt," not that Mr. Singh was the person responsible for discarding it.

[69] Second, based on the entirety of the record, including the information recently disclosed by the Crown, it is apparent, submits Mr. Cornelius, that the informer did not receive information directly from Mr. Singh. Instead, the informer obtained information from "Gurraj Bassi, Harminder Bassi, and/or Guryodh Khattra" and "did not receive any other information, from any source, about this occurrence." As a result, the admissibility of the informer's potential evidence, Mr. Cornelius argues, is very much in question. Consequently, Mr. Khattra has failed to demonstrate how the privileged information could raise a reasonable doubt.

[70] With the parties' positions summarized, I turn to address the issues raised by the application.

c. Does the innocence at stake test apply to material witnesses?

[71] The first point of disagreement between the parties is whether the innocence at stake test developed in McClure applies to informers who are also material witnesses.

[72] In Ontario, at least, the question does not appear to have been previously addressed. However, the British Columbia Court of Appeal has considered the issue. In R. v. Montgomery, 2016 BCCA 379, 341 C.C.C. (3d) 147, leave to appeal refused [2016] S.C.C.A. No. 493, the appellant advanced the very same argument that Mr. Khattra has made before me on this application. Frankel J.A., with his usual care, analyzed the issue on behalf of the court, writing at paras. 364-369:

364 The appellants assert that informer privilege can never apply to a material witness. In support of that position they rely on R. v. Scott, 1990 CanLII 27 (SCC), [1990] 3 S.C.R. 979, a case in which Cory J. appeared to recognize the following as exceptions to informer privilege (at 996):

(a) where the informer is a "material witness" to the crime;

(b) where the informer acted as an agent provocateur; and

(c) where an accused seeks to establish that reasonable grounds for a search did not exist.

365 With respect to material witnesses, the appellants place particular emphasis on the first sentence of the following paragraph from Cory J.'s reasons (at 996) which appears after his reference to the statement in Bisaillon v. Keable, 1983 CanLII 26 (SCC), [1983] 2 S.C.R. 60 at 93, that innocence at stake is the only exception to informer privilege:

Certainly, if the informer is a material witness to the crime then his or her identity must be revealed. In Roviaro v. United States, 353 U.S. 53 (1957), the United States Supreme Court held that the informer's identity would be divulged if the informer was a material witness. Canadian courts have very properly followed the same path in circumstances where the informer is the only material witness to the crime: see R. v. Davies (1982), 1982 CanLII 3809 (ON CA), 1 C.C.C. (3d) 299 (Ont. C.A.).

366 However, the Supreme Court of Canada has made it clear in subsequent cases that innocence at stake is "the one true exception" to informer privilege, and that the "so-called exceptions [mentioned in Scott] are simply applications of this one true exception": Named Person v. Vancouver Sun, 2007 SCC 43 at para. 29, [2007] 3 S.C.R. 253. See also: R. v. Leipert, 1997 CanLII 367 (SCC), [1997] 1 S.C.R. 281 at paras. 26-27; R. v. Barros, 2011 SCC 51 at paras. 1, 34, [2011] 3 S.C.R. 368; British Columbia (Police Complaint Commissioner) v. The Abbotsford Police Department, 2015 BCCA 523 at para. 7, 381 B.C.A.C. 110, leave to appeal ref'd [2016] S.C.C.A. No. 75.

367 The mere fact that the informer witnessed the crime being committed is not sufficient to displace informer privilege. As Mr. Justice Steele stated in R. v. Peddle (1996), 1996 CanLII 11062 (NL CA), 111 C.C.C. (3d) 321 at 329 (Nfld. C.A.), to come within the exception discussed in Scott, an informer who is also a witness must be "an individual who had personal knowledge of the commission of the offence and possessed essential information needed to demonstrate the innocence of the accused." In other words, as Steele J.A. stated at 330, the informer's evidence must be "critical to the defence's case in order to demonstrate the [accused's] innocence."

368 I disagree with the appellants' submission that Barros "confirmed that a material witness cannot be a confidential informer." In support of that submission they cite the following from the judgment of Mr. Justice Binnie at para. 33 in Barros: "No protection is afforded to a 'source' whose conduct goes beyond the provision of information and acts as an 'agent provocateur' or is otherwise a material witness to the crime." However, I do not accept that by this statement the Supreme Court of Canada intended to depart from the well-established principle, mentioned several times in Barros, that innocence at stake is the only exception to informer privilege, and thereby create a stand-alone material witness exception. Indeed, in the first paragraph of his judgment Binnie J. stated that "[informer] privilege is subject neither to judicial discretion nor any balancing of competing interests (although qualified by an 'innocence at stake' exception)." Of note is R. v. Marshall (2005), 2005 CanLII 30051 (ON CA), 200 C.C.C. (3d) 179 at paras. 101-104 (Ont. C.A.), leave to appeal ref'd [2006] S.C.C.A. No. 105 , [2006] 2 S.C.R. ix, a case in which an application for disclosure of the identities of two informers on the basis that they were material witnesses was refused because the accused failed to bring himself within the innocence at stake exception.

369 With respect to the appellants' second argument--that "the Crown must prove that the informant is not a material witness"--their submission is predicated on the erroneous premise that there is a separate material witness exception to informer privilege. In this case, once the judge was satisfied that X was a person to whom the privilege applies the onus was on the appellants to establish that the innocence at stake exception applied: Named Person at para. 27; Leipert at para. 33. This is something they never attempted to do.

[73] Although Montgomery does not bind me, I find Frankel J.A.'s analysis persuasive and will follow it. I share his view that informer privilege admits but one exception, innocence at stake. McClure sets out the required steps and necessary analysis to engage in when a court must decide if the exception applies.

c) Has Mr. Khattra satisfied the two elements of the threshold test?

[74] Before the court can apply the innocence at stake test, an accused must establish the two elements of the threshold test: (1) that the privileged information is not available from any other source; and (2) that the accused is otherwise unable to raise a reasonable doubt. I will consider each of these requirements in turn.

- Is the information available from any other source?

[75] When considering this first element of the threshold test, "information" means more than knowledge of a fact – the question is whether the accused has access to other information, of the same nature as that protected by the privilege, that would be admissible at trial: Brown, at para. 35.

[76] Presently, the only witness who identifies Mr. Khattra as a participant in the fatal assault is Mr. Singh. On his account, while he remained in the car back at the intersection, he watched as Mr. Khattra and the three co-accused attacked Paviter Bassi. Mr. Singh maintains that Mr. Khattra returned with the victim's iPhone after the attack, and that Mr. Khattra momentarily passed the phone to Mr. Singh before he quickly gave it back. Mr. Singh also stated that a couple of days later, Mr. Khattra told him that he disposed of the phone, described the general location where he did so, and then asked him to retrieve it. Mr. Singh does not shed any light on the reason for the discarding of the iPhone.

[77] It is apparent from the record that the informer appears to have information otherwise unavailable to the defence. The informer attributes the taking of the iPhone to Mr. Singh, not Mr. Khattra. Similarly, the informer reports that Mr. Singh, not Mr. Khattra, disposed of the phone. The informer also ascribes a motive for the iPhone's disposal, that it contained communications between Paviter Bassi and the "culprits." Evidence regarding each of these important details concerning the victim's iPhone does not appear to be available to Mr. Khattra from any other known source.

[78] At this point, I am unable to determine, based on Detective Sergeant Baxter's note alone, whether the informer also reported that Mr. Singh obtained the iPhone at the time of the fatal assault. Detective Sergeant Baxter imperfectly records information provided to him by P.C. McCurley, who in turn received that information from P.C. Paronuzzi, who was the officer dealing directly with the informer. Not surprisingly, it is difficult to discern what the informer said precisely based on this triple-hearsay account.

[79] However, when combined with P.C. Saran's note from March 21, 2018, and the additional disclosure from March 10, 2020, it is apparent that the informer described Mr. Singh to the police as the "stabber." That would mean that he was one of the four assailants on the field, consistent with him taking the phone from Paviter Bassi during or right after the fatal assault. That is also information not currently available to Mr. Khattra from any other known source.

[80] That said, from the additional disclosure, it appears that the informer identifying Mr. Singh as the stabber was only something the informer surmised. Nevertheless, at this point in the analysis, what seems decisive is that the informer received information from someone connected with the murder that caused the informer to believe that Mr. Singh stabbed Paviter Bassi. Whether or not that information could ultimately prove admissible is a question appropriately left to the second stage of the innocence at stake test.

[81] Mr. Khattra has established that the informer possesses information that is not available from any other source; he has satisfied the first element of the threshold test.

- Can Mr. Khattra raise a reasonable doubt in any other way?

[82] The Supreme Court of Canada has noted that the "second element of the threshold test raises significant procedural issues, particularly regarding the proper timing of a McClure application": Brown, at para. 46. That is because the privilege should only be violated where the accused cannot raise a reasonable doubt in any other way: Brown, at para. 48. In most cases, meaningfully undertaking that assessment before the end of the Crown's case will be difficult: Brown, at para. 52.

[83] Until the Crown presents its case and the defence does its best to challenge it using the non-privileged information at its disposal, the court will be hard-pressed to decide whether the accused requires access to the information to raise a reasonable doubt. After all, trials are not scripted events. Sometimes a witness who everyone expects to attend court fails to do so. Occasionally, a witness expected to say one thing testifies to something very different. And, critically, some witnesses wither under cross-examination. It is inherently difficult to predict how a trial will unfold.

[84] Cognizant of these realities, the Supreme Court of Canada has observed that "[i]n the usual case, it would be preferable to delay the McClure application until the end of the Crown’s case.": Brown, at para. 52. Of course, there is no absolute rule. Ultimately, the court has discretion concerning when to hear a McClure application: Brown, at para. 51.

[85] However, in this case, at this early stage, there are too many variables that remain unknown for the court to make an informed assessment as to whether Mr. Khattra requires access to the information protected by informer privilege to raise a reasonable doubt. In contrast, the trial judge will be in a far better position to make that determination.

[86] For example, the trial judge will be able to evaluate whether defence counsel has managed to effectively impeach Mr. Singh during cross-examination using only the non-privileged information available to him. In that regard, there already appears to be plenty of fertile ground for effective cross-examination.

[87] First, Mr. Singh was initially charged with first-degree murder and had the charge against him withdrawn because he agreed to co-operate with the authorities. His potential motivation to falsely implicate Mr. Khattra is obvious. As a result, his testimony will necessarily attract a strong Vetrovec warning: see Vetrovec v. The Queen, 1982 CanLII 20 (SCC), [1982] 1 S.C.R. 811, 136 D.L.R. (3d) 89.

[88] Second, in his initial sworn statement to the police, although Mr. Singh mentioned that Mr. Khattra told him he "got rid" of the victim's phone, he failed to mention that Mr. Khattra also told him where he discarded it or asked him to retrieve it. These are significant omissions.

[89] Finally, phone records suggest telephone contact between the victim and Mr. Singh in the days preceding the murder. That was something that Mr. Singh also failed to mention in his statement to the police, another significant omission that will undoubtedly reflect negatively on Mr. Singh's credibility.

[90] These are just some obvious examples. Undoubtedly, experienced defence counsel will identify plenty more.

[91] Until Mr. Singh is subject to the rigours of cross-examination at trial, it would be premature to conclude that Mr. Khattra cannot raise a reasonable doubt without accessing the information subject to informer privilege.

[92] Additionally, it remains to be determined whether the three co-accused will plead guilty as expected. Should this happen, each would be compellable by either the Crown or the defence. If Mr. Khattra is innocent and Mr. Singh is the person who stabbed Paviter Bassi, it remains possible that one of his co-accused might suffer a crisis of conscience and provide evidence that serves to raise a reasonable doubt.

[93] In short, at this juncture, it would be premature to decide the second element of the threshold test. It is sensible to defer that analysis to the trial judge, and their considerable discretion concerning the appropriate time for deciding the application based on the concrete realities of the trial: see Brown, at para. 54.

[94] Of course, from a trial management standpoint, especially in a case involving a jury, I appreciate that this outcome is far from ideal. Nevertheless, the Supreme Court of Canada has clearly instructed that concerns about trial disruptions and delays, and the inconveniencing of jurors, cannot take precedence over ensuring that intrusions on informer privilege only occur when absolutely necessary for an accused to raise a reasonable doubt: Brown, at para. 55.

Conclusion

[95] For these reasons, I dismiss Mr. Khattra’s application without prejudice to him renewing it before the trial judge at an appropriate time.

Signed: Justice J. Stribopoulos

Released: August 28, 2020

COURT FILE NO.: CRIMJ(F) 1981/19

DATE: 20200828

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Respondent

• and -

GURYODH SINGH KHATTRA

Applicant

INFORMER PRIVILEGE

(PRELIMINARY RULING)

Stribopoulos J.

Released: August 28, 2020