Court and Parties

Date: 2023-05-17 Ontario Superior Court of Justice

Between: His Majesty The King And: A.B., Applicant/Defendant

Counsel: Crown Counsel, for the Crown Defence Counsel, for the Applicant/Defendant

Heard: September 12, 2021 (all other dates have been redacted)

Redacted Reasons for Decision Regarding an Application Seeking a Stay of Proceedings

m.l. edwards, r.s.j. :

Overview

[1] The Applicant seeks an order staying the charges against him/her on the basis of alleged police misconduct. It is alleged that in his capacity as a confidential informant (often referred to as a CI), A.B. met with police officers associated with the police investigation that involve the charges before the court. In these meetings, it is alleged that the police officers attempted to:

a) breach solicitor-client privilege between A.B. and his/her counsel.

b) disparaged A.B.’s counsel by suggesting he/she was a “gangster lawyer”; and,

c) attempted to breach a witness exclusion order made by the judge presiding at A.B.’s preliminary hearing.

[2] Throughout these reasons the Applicant is referred to as either the Applicant or A.B. This is done to ensure his anonymity given his acknowledged status as a confidential informant. To further protect the identity of A.B. these reasons as published will not identify the name of A.B.’s lawyer, nor will these reasons identify the name of the investigating police force, nor the police officers involved. An unredacted version of these reasons has been given to counsel and a sealed copy of these reasons will be deposited in the Court file. The unredacted reasons may only be unsealed by order of this court.

To assist in understanding these redacted reasons that will be published the following acronyms will apply:

a) the name of the investigating police force is redacted and replaced with “The Police Force”

b) the name of the investigating police officer and CI handler is redacted and will be referred to as W

c) the name of the AB’s lawyer is redacted and replaced with “Defence Counsel”; defence counsel is identified as defence counsel and or he/she to preclude any identification of the lawyer for AB;

d) the name of Crown counsel is redacted and throughout the reasons is referred to as Crown counsel

e) the Location of the OCJ Courthouse is redacted and replaced with XYZ Court house

f) the name of the first Crown witness at the preliminary hearing is redacted and replaced with B

g) the name of the Legal Aid lawyer has been redacted and replaced with S

h) all references to the identity of A.B. refer to he/she; him/her

i) all dates except the year have been redacted

The Facts

[2] The Applicant is charged with a number of CDSA charges and Criminal Code charges the details of which are redacted. The details of the charges are however reflected in the unredacted version of my Reasons.

[3] The police investigation that led to the charges began in July 2017, when the Police received information about an individual who was allegedly dealing in drugs through a messaging application. Detective Constable W (“W”) was the officer in charge of the investigation, who had both participated in surveillance and was the eventual affiant in this matter.

[4] The allegations that led to the charges arose out of the Applicant allegedly trafficking to undercover officers on three occasions, as well as knowledge that the Applicant had with respect to drugs located in a storage location (redacted), which ultimately led to a search warrant being issued in (redacted date) 2017.

[5] The quantum of drugs is not insignificant and includes significant quantities of Schedule 1 and other controlled substances. The full details have been redacted but remain in the unredacted version.

[6] This paragraph is redacted in its entirety.

[7] The Applicant was arrested on (redacted date) 2017 and was given his/her rights to counsel. He/she spoke with a lawyer. Subsequent to the phone call made at the time of his/her arrest, the Applicant retained Defence Counsel in late (redacted date) 2017.

[8] After his/her arrest, the Applicant was contacted by W which resulted in a meeting where the Applicant was asked by W about information concerning a “big fish”. The discussion involved the Applicant becoming a police informant.

[9] W confirmed in his evidence before this court that as of (redacted date) 2017, he became the co-handler of A.B. in connection with A.B.’s status as a CI.

[10] A preliminary inquiry in the matter took place (in redacted date) 2020, in the Ontario Court of Justice in XYZ.

[11] The first Crown witness at the preliminary inquiry was Detective Constable B (“B”). During the course of his/her evidence, questions arose with respect to interviews that may or may not have taken place between the police and the Applicant since his/her arrest. The presiding justice at the preliminary inquiry had made the standard order excluding witnesses.

[12] During the course of his evidence, B was required to exit the courtroom while counsel was engaged in discussions, some of which pertained to the possibility that confidential informant privilege might be divulged.

[13] While B was being examined at the preliminary inquiry, W was not in the courtroom. W, however, did communicate with the Applicant who had been in the court room.

[14] At around 8:00 p.m. on the first day of the preliminary hearing (date is redacted from the unredacted reasons) W and A.B. exchanged text messages. In those messages it is clear W wanted to talk to A.B. on an urgent basis. He made clear to A.B. in those text messages he was not looking for “info” as he had been in other meetings. Arrangements were made to speak that evening (date is redacted from unredacted reasons). Unbeknownst to W, was the fact that the Applicant recorded the call.

[15] During the course of the telephone call between the Applicant and W, it is undisputed that the following conversations took place:

a. W asked the Applicant “If 100% you didn’t talk to that lawyer”, to which the Applicant replied, “No no no, I don’t want, I don’t because you told me like (defence counsel) know lot.”

b. W asked “I told you right? He/she’s got, you already know, he/she works with so many gangsters.” The Applicant responded, “I know, you told me, you told me.”

c. W responded, “Like every single Chinese person, that is get arrested for like drugs or guns, everyone use him/her. You know that.” The Applicant responded, “I know, I don’t want in trouble, I don’t want get killed.”

d. W responded, “Yeah, because he/she’s fucking” to which there then ensued further conversation about the Applicants lawyer

e. A second tape recorded conversation occurred between W and the Applicant. In that conversation W referred to the Applicants lawyer as a “gangster lawyer”

f. In the second taped conversation W pressed the Applicant for information about what the applicants lawyer charged him/her by way of legal fees. Specifically W asked “I wanna know how much he/she charge” which was followed up with questions as to whether it was $50,000 or $100,000 and the applicant responded “Close,75”.

[16] While there is a dispute between the Crown and the Applicant with respect to some parts of the conversation that took place between the Applicant and W during the hours after the preliminary hearing concluded on March 9, 2020, having listened to the audiotape W asked the Applicant and made the following comments:

a. “Did he/she ask you?”, to which the Applicant responded, “He/she didn’t talk to me but before you know before I told you two cops come to me.”

b. Did he/she ever ask you questions like “Did you talk to a cop after you got arrested?”…“Yeah, did he/she ask you after you got arrested did you talk to police? After you got released did you ever meet with the police? Did he/she ever ask you that?”

c. “Did he/she ask you did he/she ask you, ‘Did you ever meet with the police once you got released’?”

d. W specifically asked the Applicant (this in the context of the ongoing preliminary hearing and the witness exclusion order), “Because tomorrow, I have to make sure, if he/she asks, I have a feeling that he/she’s going to ask me. I’m going to say no”…“I’m just, I want to make sure, okay because if he/she asks me tomorrow, if you and I are friends, I’m going to say no.”

[17] As it relates to the two recordings made by the Applicant of W, these recordings did not come into the possession of Defence Counsel’s office (redacted date but after the preliminary hearing). The preliminary inquiry took place in (redacted date) 2020. As such, Defence Counsel would not have been aware of the contents of those recordings, as they had not been provided to his/her by the Applicant until at the earliest May 19, 2020. It is also an undisputed fact that Defence Counsel never directed the Applicant to make the recordings.

[18] When the preliminary inquiry resumed on (redacted date) 2020, submissions were made that ultimately led to the court directing that counsel could only question B as it relates to interviews related to the charges before the court. With this ruling, W testified that he was not questioned about any meetings or interviews that he had unrelated to the charges before the court.

[19] With the preliminary inquiry complete on (redacted date) 2020, W maintained a text chain with the Applicant which resulted in a request on (redacted date) 2020 by W to meet the Applicant in person. That meeting took place and was again recorded unbeknownst to W and a colleague who was also with him. It is not disputed by the Crown that the conversation included the following:

a. W stated, “Yeah that’s why I said, just like, I never will say anything. But yo that’s, I said be careful about (defence counsel) right? I can’t tell you anything but he/she gangster lawyer.”

b. W informed the Applicant, “Yo, but, I can’t talk about your case, but yo, you know, if you gonna switch because you don’t have enough money for (defence counsel), right?”

c. This remark was then followed with the following: “I wanna know, I wanna know how much he/she charge.”

[20] Conversations took place between W and the Applicant that related in part to the lawyer to whom he/she had spoken at the time of his arrest, S. W inquired as to whether S was a Legal Aid lawyer, as a result of which W asked the Applicant if he/she still owed counsel money or if he/she had “paid him/her already.”

[21] The conversation between W, his/her colleague, and the Applicant, revolved around the Applicant providing information to the police for which he/she would receive “bigger money”. Having offered the prospect of “bigger money”, W then stated, “But my problem is, my one problem, is (defence lawyer).” The Applicant was confused and asked, “What do you mean is (defence lawyer)?” The response provided by W was, “Well (defence lawyer) thinks said or you’re scared that maybe people think that you’re already working for the police. I’m scared that other people may know.”

[22] Subsequent to the second conversation, it is acknowledged by the Crown that Defence Counsel’s office began efforts to disclose the taped recordings to the Crown during the summer of 2020. Ultimately, Defence Counsel’s office disclosed the recordings in May and June, 2021.

The Cross-Examination of W

[23] When Officer W testified at the hearing of this application he/she was unaware that A.B. tape recorded the conversations that are reflected above. Before he/she was confronted with the contents of the tape-recorded conversations, W confirmed that his/her first interaction with the Applicant was after the Applicant had been arrested and more importantly W confirmed that he/she had been part of the investigation that had run between (redacted date) 2017 and (redacted date) 2017. W confirmed that he/she was at the police station when the Applicant arrived subsequent to his/her arrest and that he/she spoke to the Applicant for about 20-30 minutes before discussions then moved to the possibility of the Applicant becoming a confidential informant.

[24] W confirmed that in his role as the handler of a confidential informant it was important to keep notes of those conversations. As the cross-examination of W unfolded it was very apparent that while the proper practice was to keep notes of conversations with a confidential informant such did not happen in the case of the Applicant in this case.

[25] W was asked in cross-examination whether he had ever referred to the Applicant’s lawyer as a “gangster lawyer” to which W responded, “that was possible”. He was also asked if he had ever made similar comments to other confidential informants about their lawyers being “gangster lawyers” to which he replied, “it was on a case-by-case basis”.

[26] As it relates to the various text messages which took place between W and the Applicant, particularly as they related to the Applicant’s “serious safety concerns” W confirmed that he should have taken “screen shots” of those texts but that he had not done so.

[27] As it relates to the preliminary hearing and questions about whether or not W had discussions with the Applicant and his/her lawyer W initially stated that he/she could not recall those conversations but agreed that given the witness exclusion order it would have been inappropriate to have that contact. W was asked whether he/she recalled inquiring of the Applicant as to whether he/she had told his/her lawyer to which W stated, “I don’t recall”.

[28] W was specifically asked as to whether he recalled a conversation with the Applicant on (redacted date) prior to W’s scheduled appearance at the preliminary inquiry on March 10. W testified he could not recall who initiated the contact and that there was nothing in his handlers notes about any conversation (redacted date) with the Applicant. The evidence from the text messages makes clear that in fact it was W who initiated the contact with the Applicant.

[29] As it relates to the conversations with the Applicant about what his/her lawyer charged in fees, W conceded that it was not a good thing for him/her to have made these inquires and that it was “fringed” and “curiosity” on his/her part to have had those conversations. W agreed that he/she may have said something about the legal fees charged by the Applicant’s lawyer as being “crazy”, but this was simply a reflection of him/her being “nosey”.

[30] W was specifically cross-examined about whether he would have lied in court at the preliminary hearing about his discussion with the Applicant and the relationship with the Applicant. When pressed in cross-examination W stated that “I never imagined we would be in court about this – what I was saying was I will keep my mouth shut”.

[31] When asked in cross-examination as to whether he had breached the witness exclusion order when he contacted the Applicant and asked him questions about what his lawyer was going to ask him, W testified “I am not denying it – sometimes I put my foot in my mouth”. W confirmed when confronted with the tape-recorded conversation with the Applicant that his discussion between him and the Applicant about his lawyer should not have happened and further agreed that none of these conversations were recorded in his handler notes.

[32] W was asked in cross-examination whether he/she attempted to steer the Applicant away from his/her lawyer to which W testified that he/she might have done so but only as it related to “cost” but that it was never his intention to steer him/her away. He/she did agree however, that if he/she did that he/she would have “strayed over the line”.

[33] When questioned about the absence of notes W testified that the gaps in his notes were because he never expected his notebook “to see the light of day”.

The Relief Sought

[34] The Applicant seeks an order declaring that his/her rights under sections 7 and 10(b) of the Charter of Rights and Freedoms (“Charter”) were violated by the Police Force. The Applicant seeks an order pursuant to section 24(1) of the Charter staying the charges against him/her as a result of the abuse of process reflected in the interaction between the Applicant and W.

[35] In the alternative, the Applicant seeks an order pursuant to section 24(1) or section 24(2) of the Charter excluding all of the real or derivative evidence at trial, which would include utterances and statements made by the Applicant as well as observations made by the police through the course of and subsequent to the police investigation, and any property alleged to be seized from the Applicant.

[36] There are essentially two prongs to the attack made by the Applicant as it relates to the discussions reflected in the evidence summary set forth above. The first issue raised by the Applicant relates to the disparaging comments made by W about the Applicant’s counsel of choice, Defence Counsel. The Applicant argues that those discussions reflect a clear attempt on the part of W to interfere with the Applicant’s choice of counsel and solicitor-client privilege. Specifically, as it relates to W’s questioning of the Applicant concerning the legal fees charged by Defence Counsel, it is argued that this is a clear breach of solicitor-client privilege. As well, it is argued that the disparagement of counsel reflected in W’s discussions with the Applicant is clear evidence of W’s intention to interfere with the Applicant’s right to counsel of choice.

[37] The second major issue as it relates to what occurred between W and the Applicant, relates to the suggestion that W was attempting to obtain information from the Applicant as it relates to the questioning that he might be subjected to at the preliminary inquiry. Given that W texted the Applicant at around 8:00 p.m. the evening after the preliminary inquiry had adjourned for the day, it is argued this demonstrates that the sole purpose for which W wanted to speak with the Applicant was to determine what, if anything, he had told Defence Counsel in an attempt to determine what Defence Counsel might ask him once he was sworn in as a witness the following day at the preliminary inquiry.

[38] Defence Counsel acknowledges that defence counsel is not in the circle of confidential informant privilege. Defence Counsel nonetheless argues that while there were discussions between W and the Applicant that fall within confidential informant privilege, there were other discussions that fundamentally go to the integrity of the court process, specifically W’s discussions relating to the questions that he could anticipate from Defence Counsel once he became a witness at the preliminary inquiry.

Position of the Crown

[39] Mr. Crown Counsel argues that the discussions between W and the Applicant during the evening of (redacted date) fall within the clear definition of confidential informant privilege, and that those discussions cannot be used as a sword to weaponize getting a stay of proceedings simply because someone is a confidential informant. As it relates specifically to the question of whether or not the witness exclusion order made during the preliminary inquiry was breached, Mr. Crown Counsel correctly notes that the onus is on a balance of probabilities.

[40] Specifically as it relates to witness exclusion orders, Mr. Crown Counsel again correctly notes that the purpose of a witness exclusion order is to protect the integrity of the evidence and that what W was asking the Applicant related to questions that he might be asked about his role as a confidential informant, which Mr. Crown Counsel argues has nothing to do with the guilt or innocence of the Applicant and whether he should have been committed for trial at the preliminary inquiry.

[41] As it relates to the discussions between W and the Applicant concerning Defence Counsel being described as a gangster lawyer and the discussions concerning what he/she charges as a retainer, Mr. Crown Counsel argues that the Applicant has shown no prejudice given that Defence Counsel continues as the Applicant’s counsel of choice.

[42] Mr. Crown Counsel argues that not only has the Applicant failed to establish any prejudice, but he has also failed to establish that the type of behaviour reflected in the discussions between A.B. and W will continue, nor is there any evidence of any prior ongoing concerns as it relates to any policy that the Police has concerning the handling of the confidential informant.

The Legal Principles

[43] The legal issues raised by counsel, both in their written submissions and in their oral submissions, requires this court to analyze at least two fundamental principles; the first of which relates to the scope of confidential informant privilege, and the second relates to the circumstances in which the court may grant a stay of proceedings and/or exclude substantive evidence. The substantive evidence in this case, of course, relates to the drugs and substantial Canadian currency which were seized at the time of A.B.’s arrest.

The Scope of Confidential Informant Privilege

[44] The scope of confidential informant privilege is near absolute. The privilege acts as an almost complete bar to the disclosure of information that could tend to identify an informant. The Supreme Court of Canada in R. v. Leipert, at para. 9, stated:

A court considering this issue must begin from the proposition that informer privilege is an ancient and hallowed protection which plays a vital role in law enforcement. It is premised on the duty of all citizens to aid in enforcing the law. The discharge of this duty carries with it the risk of retribution from those involved in crime. The rule of informer privilege was developed to protect citizens who assist in law enforcement and to encourage others to do the same.

[45] In a more recent decision of the Supreme Court of Canada in R. v. Barros, 2011 SCC 51, at para. 1, Binnie J. stated:

The jurisprudence establishes that the identity of police informers is protected by a near-absolute privilege that overrides the Crown’s general duty of disclosure to the defence. This privilege is subject neither to judicial discretion nor any balancing of competing interests (although qualified by an ‘innocence at stake exception’).

[46] The facts of this particular case require some discussion with respect to who is within what is often referred to as the “circle of privilege”. The caselaw makes clear that the confidential informant privilege is a privilege which is held by both the informant and the Crown. The Supreme Court of Canada in R. v. Brassington, 2018 SCC 37, at para. 41, confirms that those who are bound to uphold the confidential informant privilege include the informer, the police, the Crown and the courts. All four are within the circle of privilege. The circle of privilege does not include defence counsel-see R. v. Named Person A, 2017 ABQB 552, at para. 6. As well, the Supreme Court in Brassington makes clear, at para. 46, that defence counsel are outside the circle of privilege.

[47] In situations like the one presented by the facts of this case, it is open to the court to allow defence counsel into the circle of privilege. In a situation where a confidential informant informs defence counsel of their status as a confidential informant, defence counsel is not automatically included in the circle of privilege. Defence counsel only becomes part of the circle of privilege through a proper waiver which must be voluntarily informed, specific, and unequivocal, and made with full knowledge of the nature and extent of the privilege waived. See Named Person A, at para. 29.

[48] The waiver process is not one way. Rather, it is two-fold. In a situation where the confidential informer has indicated a desire to waive the privilege, the Crown must also agree to the waiver as reflected in the Supreme Court of Canada decision in Named Person v. Vancouver Sun, 2007 SCC 43, where at para. 25 the Court stated:

Moreover, the informer himself or herself cannot unilaterally ‘waive’ the privilege. The authors of The Law of Evidence in Canada write, at p. 883, that ‘[t]he privilege belongs to both the Crown and the informer and thus the informer alone cannot ‘waive’ the privilege and neither can a party in a civil proceeding’; J. Sopinka, S.N. Lederman and A.W. Bryant, The Law of Evidence in Canada (2 nd ed. 1999). [Emphasis in original]

[49] It is important to note that in this particular case, waiver of the privilege was eventually negotiated and was put into place in October 2021, and that it was not until that time that counsel for A.B. was brought into the circle of privilege in a limited manner. The Crown agreed to this waiver in the interest of transparency and to allow for the litigation of the issues raised by the Applicant. Crown counsel, in my view, is entirely correct when he states that without this waiver these issues could not have been examined. It is important to note that in his/her closing argument Defence Counsel conceded that he/she, as counsel for A.B., was not within the circle of privilege.

[50] While Defence Counsel concedes that defence counsel is not within the circle of privilege, and further concedes that confidential informant privilege is unreviewable subject only to the innocence at stake principle, Defence Counsel rhetorically raises the question as to whether or not confidential informant privilege could be reviewable where the court has concerns about the control of its own court process. I leave to another day whether or not such a review could be entertained. In this case, the Crown has granted the necessary waiver to allow this court to adjudicate A.B.’s application for a stay of the proceedings.

The Stay Application and S.24 (2)

[51] Mr. Crown Counsel and Defence Counsel are essentially in agreement with respect to the law as it relates to the granting of a stay under the residual category of section 7 of the Charter. They disagree, however, with respect to the application of the law as it relates to the facts of this case.

[52] In order to obtain a stay under the residual category of section 7 of the Charter, the following test must be applied as reflected in the Reasons of the Supreme Court of Canada in R. v. Babos, 2014 SCC 16, at para. 32, which states:

The test used to determine whether a stay of proceedings is warranted is the same for both categories and consists of three requirements:

(1) There must be prejudice to the accused’s right to a fair trial or the integrity of the justice system that “will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome” (Regan, at para. 54);

(2) There must be no alternative remedy capable of redressing the prejudice; and

(3) Whether there is still uncertainty over whether a stay is warranted after steps (1) and (2), the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against ‘the interest that society has in having a final decision on the merits’ (ibid, at para. 57).

[53] The circumstances in which the court can find a breach of section 7 of the Charter can be found where the court is satisfied there has been a substantial interference with the integrity of the justice system-see R. v. Pan, 2012 ONCA 581, at para. 45. The Supreme Court of Canada in R. v. Jewitt, [1985] 2 S.C.R. 128, at pp. 131-137, concluded that a stay of proceedings can be granted when “…compelling an accused to stand trial would violate those fundamental principles of justice which underlie the community’s sense of fair play and decency and to prevent the abuse of a court’s process through oppressive or vexatious proceedings”.

[54] In this case A.B. alleges that the conduct of the police, as reflected in the tape-recorded conversations as well as the text messages, together with the evidence on this application, amounts to an abuse of process. Police misconduct that is ultimately determined to be an abuse of process was reviewed by the Ontario Court of Appeal in R. v. Jageshur, at para. 19, as follows:

The ultimate question is not legality, but whether the police conduct was sufficiently egregious so as to shock the conscience of the community and demand that the court not lend its process to a prosecution flowing from such conduct. This inquiry demands not only a qualitative assessment of the nature of the misconduct, but also a consideration of the societal interests served by allowing the prosecution to proceed despite the police misconduct: R. v. O’Connor, supra, at p. 38; R. v. Shirose, supra, at p. 285. Placed in the context of the present case, the trial judge was required to consider the extent to which the police conduct reflected a disregard for the rule of law, established/shed RCMP policies, and direct orders from superiors; and to balance that consideration against the societal interests in the prosecution on the merits of a very serious charge.

[55] In addition to seeking a stay of proceedings the Applicant seeks a remedy under s. 24(2) of the Charter. The test for whether the admission of evidence would bring the administration of justice into disrepute was reformulated by the Supreme Court of Canada in R. v. Grant, 2009 SCC 32, 2009 S.C.C. 32 at para. 7 as follows:

(a) The seriousness of the Charter infringing state conduct;

(b) The impact of the breach and the Charter protected interests of the accused; and

(c) Society’s interest in the adjudication of the case on its merits.

[56] The Grant analysis has been recently clarified by the Supreme Court of Canada in R. v. Tim, 2022 SCC 12, 2022 S.C.C. 12 where the court makes clear that the Grant test requires a thorough contextual analysis of each branch of the test including the third branch and a cumulative balancing at the end of each branch has been carefully evaluated. The cumulative balancing is not a mathematical exercise.

[57] As it relates to the first branch of the Grant test, the Supreme Court in Tim makes clear that the state conduct must be carefully assessed and situated along a continuum between inadvertent, technical, minor, and understandable mistakes through negligence. The continuum may escalate to reckless disregard of Charter rights to deliberate willful violations. Finally, the continuum may relate to a pattern of Charter infringing conduct at the most serious end. The closer to the serious end of that continuum it is now clear that the Court should dissociate itself from such conduct. The reason why the court should dissociate itself from that conduct is to preserve confidence in the rule of law and avoid bringing the administration of justice in disrepute. It is not necessarily to punish police misconduct.

[58] As it relates to the second branch and the impact on the Charter protected interests of the accused, the second line of inquiry requires consideration of the impact of the breach on the accused’s Charter protected interests. The question to be asked is whether the breach “actually undermined the interests protected by the right infringed” and engages a two-step process, the first of which relates to the identification of the interest engaged and then secondly, the degree to which that interest has been affected -see Tim para. 90.

[59] Finally, as it relates to the third branch of the Grant test specifically society’s interest in adjudication, the Supreme Court has again clarified that the more reliable the evidence the more the court may want to hear it. The second aspect of the test relates to the importance of the evidence to the Crown’s case and finally, the seriousness of the offence.

[60] As to how the court should balance the various Grant factors, Tim has clarified that this is a qualitative exercise which is not capable of mathematical precision. The balancing is prospective and aims to ensure that evidence which has been obtained through a Charter breach “does not do further damage to the repute of the justice system”.

[61] The balancing is also societal and that the goal is not intended to punish the police but rather to address what may be described as systemic concerns by analysing “the broad impact of the admission of the evidence on the long-term repute of the justice system”: see Tim at para. 98.

Analysis

[62] My analysis of the police conduct in this case and specifically W’s conduct begins with a number of general observations. First it is clear that W was not just the Applicant’s handler in his/her capacity as a confidential informant distinct from his/her capacity as the accused. W was more importantly a police officer involved in the investigation of the Applicant and his/her subsequent arrest.

[63] In his capacity as investigating police officer it would be almost inconceivable that W would not have been a potential witness in the Applicant’s trial. As an investigating officer and therefore as a potential witness, it was entirely inappropriate for W then to take on the role of being the Applicant’s handler as a confidential informant.

[64] The role that an investigating police officer has as it relates to an accused is entirely distinct from the role that a police handler would have with an accused whose charges remain pending before the court. As a general observation, a police officer who is involved in the investigation of and subsequent arrest of an accused should never then occupy the role of being the handler of an accused in his or her capacity as a confidential informant. Those two roles are two separate roles that should never come together.

[65] A further observation with respect to the role of a police handler of a confidential informant relates to the note-taking that a police handler should be expected to maintain. A confidential informant has long been recognized as an essential component in the tool kit that the police have at its disposal when investigating criminal activity. It is equally well recognized that anyone performing the role of confidential informant is potentially putting his or her life at risk.

[66] It is vital to the security interest of a confidential informant that the police not only maintain strict confidentiality but also ensure that careful notes are kept as it relates to any interaction between the police handler and the confidential informant. Those notes perform a vital role with respect to any interaction between the police handler and the confidential informant.

[67] W confirmed in cross-examination the importance of keeping notes with respect to all interactions between himself and the Applicant in his capacity as a confidential informant. The cross-examination of W made clear that many of the interactions between W and the Applicant, particularly those interactions concerning his discussions with the Applicant about his lawyer and his discussions with the Applicant about the questions that he might anticipate being asked at the preliminary hearing were never recorded in W’s handler notebook.

[68] I am left speculate as to why W did not keep the notes that even he testified he should have kept. The absence of notes is either a reflection of very sloppy police work or a deliberate practice on the part of W not to record events that to use his own words “he never expected to see the light of day”.

[69] The granting of a stay under the residual category of s. 7 of the Charter requires this court to apply the test set forth by the Supreme Court of Canada in Babos which I have reproduced in para. 52 above. The first part of the test requires the court to consider whether there has been any prejudice to the accused’s right to a fair trial or to the integrity of the justice system that could be manifested, perpetuated, or aggravated through the conduct of the trial or it’s outcome.

[70] I agree with the essential submission made by Mr. Crown Counsel that any potential prejudice to the Applicant as it relates to the solicitor-client relationship with his lawyer is not manifest in the evidence given that his counsel of choice remains the Applicant’s lawyer of choice. That however does not end the analysis. The conduct reflected in W’s evidence before this court together with the text messages and the tape-recorded conversations fundamentally undermine the integrity of the judicial system.

[71] In that regard I specifically refer to the following conduct:

a. The intertwining of W’s role as investigating police officer together with his role as a handler of the Applicant in his capacity as a confidential informant.

b. The undermining of the Applicant’s confidence in his/her lawyer of choice specifically his/her reference to the Applicant’s lawyer as a “gangster lawyer”.

c. The undermining or the attempted undermining of the solicitor-client relationship between the Applicant and his/her lawyer specifically the attempts by W to obtain information about the legal fees charged by the Applicant’s lawyer; and

d. The inappropriate contact made by W to the Applicant while the preliminary hearing was ongoing and at a time when W knew or ought to have known that there would have been a witness exclusion order.

[72] I do not accept the evidence of W and specifically his explanation of probing the Applicant for information about what questions he could expect at the preliminary hearing. His explanation that he wanted to protect the Applicant’s status as a confidential informant was in my view nothing more than an attempt to justify after the fact what had become clear as a result of the tape-recorded conversations. Even if I was to accept W’s explanation, which I do not, it is fundamental to the integrity of the court’s process that a witness exclusion order is obeyed and particularly obeyed by any police officer who might be called as a witness.

[73] It is clear from a review of the text messages that W wanted to speak to the Applicant as a matter of urgency and that the subject matter of the inquiry had nothing to do with the type of information the Applicant might normally have communicated to W in his/her capacity as a confidential informant. W persisted in his/her attempts to contact the Applicant prior to being called as a witness at the preliminary hearing. W acknowledged in cross-examination that such contact was inappropriate. It was not only inappropriate it was improper and should not be condoned by this court.

[74] As it relates to W’s attempts to obtain information about the legal fees charged by the Applicant’s lawyer, those discussions in my view, were not simply “nosey” as suggested by W but rather were entirely improper and fundamentally go to the core of solicitor-client privilege.

[75] W’s comments about the Applicant’s lawyer being a “gangster lawyer” were also entirely improper and this court must dissociate itself from such dialogue. The suggestion that defence counsel is a gangster lawyer reflects a fundamental misapprehension of the role of the defence criminal Bar. Defence Counsel like all members of the criminal defence Bar represent persons accused of a crime who are presumed innocent until their guilt is proven beyond a reasonable doubt. The criminal defence Bar is a fundamental part of our Canadian judicial system. To suggest that any lawyer is a “gangster lawyer” is an attack not just on that lawyer but potentially all criminal defence lawyers-and that is simply wrong. Defence Counsel is a lawyer in good standing with the Law Society of Ontario. He/she has done nothing to warrant having the label of a “gangster lawyer” attached to his/her name.

[76] This is a case in my view, where a remedy is required to not only make clear that this court will not countenance any interference with a witness in the face of a witness exclusion order but also to demonstrate that the role of police handler of a confidential informant must be beyond reproach.

[77] The society in which we live has an understandable interest in ensuring that a final decision should be reached on the merits of the case i.e., after all relevant evidence has been tested through the adversarial process in court. That same society needs to believe in the integrity of the judicial system in which we all place our trust. Having considered all of the evidence on this application I am satisfied that the only remedy that is capable of redressing W’s conduct is a stay of the charges.

[78] If I am wrong as it relates to the granting of a stay the result as it relates to s. 24(2) of the Charter is no different.

[79] As it relates to the first branch of the Grant analysis W’s actions which I have detailed above do not reflect inadvertent technical, minor, or understandable mistakes. Rather, they reflect a reckless disregard of the Applicant’s rights - specifically his/her ongoing right to counsel of choice. W’s disparagement of his/her lawyer and his pattern of questioning the Applicant about his/her lawyer’s legal fees together with his/her questioning of the Applicant about what questions he/she might face at the preliminary hearing put the police misconduct at the more serious end of the spectrum.

[80] In granting an order under s. 24(2) as it relates to the first branch of the Grant analysis it is important that this court preserve the confidence of society in the rule of law and to avoid bringing the administration of justice into disrepute.

[81] As it relates to the second line of inquiry of the Grant analysis the interest engaged relates specifically to the Applicant’s right to counsel. Based on the evidence that I reviewed above I am more than satisfied that W’s conduct amounted to a significant impact on the Applicant’s solicitor-client relationship and his/her right to counsel. I come to that conclusion despite the fact that his/her counsel of choice remains his/her counsel presently before this court.

[82] Applying the recent Supreme Court of Canada decision in Tim particularly the role of the reviewing court in balancing the Grant factors I am required to assess and weigh in the balance and focus on the long-term integrity of, and the public confidence in the administration of justice. To allow the conduct in this case to go unsanctioned would in my view do further damage to the publics’ confidence in the justice system. In granting a remedy under s. 24(2) I do so not with the intent of punishing the conduct of the police and specifically W’s conduct, but I do so to ensure the long-term confidence in the justice system.

[83] A confidential informant performs potentially a vital role in providing police with information that might ultimately lead to the arrest and conviction for serious offences. A confidential informant may expect potential monetary reward for information provided to the police. A confidential informant should also expect that his police handlers will conduct themselves in a manner beyond reproach. Specifically, if a confidential informant finds himself or herself in the unenviable role as both an accused and confidential informant then he or he/she should expect that he will be dealing with a police officer other than someone who was the arresting and/or investigating officer.

[84] As well a confidential informant who might also be an accused should also be able to expect that his handler will not engage in inappropriate questioning as it relates to his or her lawyer of choice and certainly should expect that his handler will not suggest that his lawyer is a gangster lawyer.

[85] For all of these reasons I am satisfied that both a stay under s. 7 of the Charter is appropriate and warranted on the facts of this case and that if I am wrong in my analysis in that regard that a remedy under s. 24(2) of the Charter is also required such that the evidence reflected in para. 5 above shall be excluded.

M.L. Edwards, R.S.J. Released: May 17, 2023

ONTARIO SUPERIOR COURT OF JUSTICE HIS MAJESTY THE KING – and – A.B. Defendant REASONS FOR DECISION REGARDING AN APPLICATION SEEKING A STAY OF PROCEEDINGS M.L. Edwards, R.S.J.

Released: May 17, 2023