Ontario Superior Court of Justice
Between:
His Majesty the King
- and -
C.I.P.
Before: K.L. Campbell J.
Pre-Trial Ruling
[Revised and Redacted]
I. Introduction and Overview
1This application is about the legal importance of confidential informant privilege, and the practical imperative that the Crown meet its legal obligation of maintaining the secrecy of the identity of all confidential informants.
2In this pre-trial Ruling, I have sought to maintain the secrecy of any and all confidential informants in this case. The proceedings on this pre-trial motion themselves were conducted in an in camera proceeding from the very outset, and the wisdom of this manner of proceeding was confirmed with counsel at the very outset of the hearing. The courtroom itself was sealed. Further, all exhibits on this pre-trial motion have been ordered sealed, just like the audio and transcript record of the hearing surrounding this pre-trial motion. See: Canadian Broadcasting Corp. v. Named Person, 2024 SCC 21, especially at paras. 13, 24-25, 32. Accordingly, this pre-trial motion was truly an in camera proceeding.
3In addition, I have sought to use gender-neutral language throughout this Ruling; I have included no court file number in relation to this case; I have not indicated who counsel were on the case, and I have tried to include no more factual details in this Ruling than are absolutely necessary in order to understand its legal significance and result. Therefore, this Ruling will necessarily appear more generic, and less detailed, than might otherwise be expected. In any event, any inadvertent gender-specific language should not be understood as any indication of the actual gender of any confidential informant in this case. Other steps have also been taken to try to anonymously disguise the identity of the individuals involved.
4The accused, who I will describe anonymously only as C.I.P., currently faces an indictment that charges them with a variety of very serious criminal offences. These charges are scheduled to be tried in this court. If the accused is convicted of these alleged offences, it seems entirely likely, for reasons I need not detail, that they will be sentenced to a very lengthy term of penitentiary imprisonment.
5However, the accused seeks, by way of this pre-trial motion, a stay of proceedings against these charges in this case. The accused contends that the Crown has violated the quid pro quo inherent in any confidential informant privilege, in that the Crown has not protected the anonymity of the confidential informant(s) in this case. In the result, the accused seeks the imposition of a permanent judicial stay of the criminal proceedings against them.
6At the conclusion of the hearing of this pre-trial motion, I advised the parties that I agreed with this position and, in the result, that I was staying all of the outstanding criminal proceedings against the accused. Further, I advised the parties that I would eventually provide them with my brief, and somewhat generic, reasons in support of this conclusion. These are those reasons.
7Upon reaching my conclusion that the proceedings would be stayed against the accused, they were told that they should make immediate efforts to agree to enter (together with their family member), and be quickly placed by the Crown, in the Witness Protection Program, so that they may be given the best opportunity to avoid the potential fatal consequences of the unfortunate Crown disclosure in this case. The accused appeared to accept this suggestion, and hopefully, by now, is well ensconced in the Witness Protection Program together with their family member.
II. The Basic Facts
8The essential facts of this case can be quite easily summarized. As they were summarized during the oral argument, the parties have agreed that they are largely accurate. Those basically agreed facts are, essentially, as follows.
9The accused has been engaged in serious criminal activity for some time. Indeed, in their testimony on this application, the accused candidly admitted that they have made their living engaged in this type of criminal activity.
10The accused and their family member have both been carded confidential informants for the police for some time.
11In the past, the accused has been able to "work off" their periodically pending criminal charges, with the assistance of their family member, by providing the police with current, reliable information regarding the criminal activity of others. Once sufficient information had been provided to the police, the criminal charges then pending against the accused would simply be quietly concluded (i.e. stayed or withdrawn by the Crown).
12In disclosure materials that were provided to the lawyers for other accused persons, the Crown disclosed information that the family member of the accused told a third-party, essentially, that they had, in the past, on a number of occasions, gathered information about the criminal activities of others, in order to get the accused out of jail.
13The parties agree that, at a minimum, one logical inference that could be drawn from this disclosed information, is that the family member of the accused is a confidential informant for the police. Defence counsel contends, however, that this information also logically suggests that the accused is themself a confidential informant for the police. I think that this defence position is a fair and reasonable argument, not without its inherent persuasiveness. But, I need not finally pass upon its validity, as in my view the defence must succeed on this pre-trial motion based solely upon the reality of the logical inference, which the parties are agreed upon, that the disclosure materials support the conclusion that the family member of the accused is a confidential informant for the police, and has been for some time, and has been engaged in this activity for the purpose of trying to help their own family member, namely, the accused.
14Once the Crown eventually became aware of the potential significance of what had been disclosed, the Crown quickly brought an application to "claw back" the disclosure that had been provided to defence counsel for the other accused persons. This application was quickly granted and the disclosure materials were all promptly returned. However, there is no evidence as to what might have been done with these disclosure materials during the fairly lengthy period of time they were in the possession of defence counsel. Accordingly, there is no evidence as to whether or not this disclosure material was shared with any or all of the accused individuals personally. I am certainly not prepared to infer, in the absence of any supporting evidence, that any or all of the other accused individuals did not personally see these disclosure materials before defence counsel were obliged to return them. Therefore, this application must proceed on the basis that some, or all, of these other accused persons may have personally viewed this disclosure material before it was subject to the "claw back" order and were ultimately returned.
15It is immediately apparent to me (and to counsel involved in this pre-trial application) that the accused and their family member are now both in grave danger. The information disclosed by the Crown, to defence counsel (and, at least theoretically, to their respective clients), suggest that the family member of the accused is a confidential informant for the police, who has provided the police with information about the criminal activities of others, a number of times in the past, in an effort to help the accused, by getting the accused out of jail.
16In the result, it is possible that, as a result of this unfortunate Crown disclosure, someone who may feel personally aggrieved by the informant activities of the family member of the accused, or who may simply not like the activities of any confidential informant: (1) may seek to harm, or even kill, the family member of the accused because they are believed to be a confidential police informant; and/or (2) may seek to harm, or even kill, the accused, as the accused is believed to be the beneficiary of the informant activities of their family member.
III. Confidential Police Informants: The Importance of the Privilege and the Quid Pro Quo Deal With Informants
17The privilege of strict confidentiality that has been accorded to police informants has been viewed as sacrosanct for centuries. The privilege is critical to law enforcement efforts, as many criminal offences would be far more difficult to investigate if the police were unable to rely upon information confidentially provided to them by informants. The privilege is also critical to informants themselves because without the police guarantee of confidentiality, there simply would be no police informants. Justifiably fearing for their own lives and safety (and the lives and safety of their family members), if their identities were disclosed, informants would simply stop providing information to the police about the criminal activities of others. The quid pro quo deal that has always been so critical for the ongoing practical existence of this privilege, and its future success, has always been: (1) that the police will absolutely maintain the confidential and anonymous source of the information provided to the police by the informant; (2) in return for current, reliable information from the informant about the criminal activities of others. If either party to this practical arrangement is unable, for any reason, to fulfill their aspect of this deal, this important relationship, between the police and their confidential informants, will cease to exist. In other words, practically speaking, if the state is unable to convincingly promise (or keep their promise) of confidentiality and anonymity to informants, the critical information that might otherwise have been provided to the police to helpfully assist in their investigative activities, will simply dry up. In short, the state simply must maintain their end of the bargain. There is no gainsaying the importance of this ongoing obligation. See generally: Canadian Broadcasting Corp. v. Named Person, at paras. 33-46.
18For example, some 35 years ago, in R. v. Scott, 1990 CanLII 27 (SCC), [1990] 3 S.C.R. 979; 61 C.C.C. (3d) 300, Cory J., for the majority of the Supreme Court of Canada, at pp. 992-995, explained the rationales for the privilege, and observed how critical it is to preserve the privilege in order to save lives and to encourage others to similarly divulge information to the authorities about the criminal activities of others. More specifically, Cory J. stated, as follows, at pp. 994-995:
The value of informers to police investigations has long been recognized. As long as crimes have been committed, certainly as long as they have been prosecuted, informers have played an important role in their investigation. It may well be true that some informers act for compensation or for self-serving purposes. Whatever their motives, the position of informers is always precarious and their role is fraught with danger.
The role of informers in drug-related cases is particularly important and dangerous. Informers often provide the only means for the police to gain some knowledge of the workings of drug trafficking operations and networks. It has been estimated that in the United States some ninety-five per cent of all federal narcotics cases involve the work of informers ….. The investigation often will be based upon a relationship of trust between the police officer and the informer, something that may take a long time to establish. The safety, indeed the lives, not only of the informers but also of the undercover police officers will depend on that relationship of trust.
Trafficking in narcotics is a lucrative enterprise. The retribution wreaked on informers and undercover officers who attempt to gather evidence is often obscenely cruel. Little assistance can be expected from informers if their identity is not protected. There can be no relationship of trust established by the police with informers without that protection. If the investigation of drug-related crime is to continue then, to the extent it is possible, the identity of informers must be protected.
The need to protect the identity of an informer has been long recognized by the courts of Canada and other jurisdictions. The Ontario Court of Appeal set out some of the reasons for maintaining this protection in Hunter, … at p. 18:
The rule against the non-disclosure of information which might identify an informer is one of long standing. It developed from an acceptance of the role of informers in the solution of crimes and the apprehension of criminals. It was recognized that citizens have a duty to divulge to the police any information that they may have pertaining to the commission of a crime. It was also obvious to the courts from very early times that the identity of an informer would have to be concealed both for his or her own protection, and to encourage others to divulge to the authorities any information pertaining to crimes. It was in order to achieve these goals that the rule was developed.
The same principle was recognized by this Court in Bisaillon v. Keable … There Beetz J. stated at p. 93:
It follows from these reasons that at common law the secrecy rule regarding police informers' identity has chiefly taken the form of rules of evidence based on the public interest, which prohibit judicial disclosure of police informers' identity by peace officers who have learned the informers' identity in the course of their duties. A witness also may not be compelled to state whether he is himself a police informer. The rule was developed in criminal proceedings, apparently in trials for high treason, but it also applies in civil matters, and in both cases it has been established for reasons which relate to the essential effectiveness of the criminal law ….. Its application does not depend on the judge's discretion, as it is a legal rule of public order by which the judge is bound.
[emphasis added – citations omitted]
19Further, the law is clear that confidential informant privilege effectively belongs to both the Crown and the informer. In other words, neither the Crown, nor the informant can unilaterally waive the privilege. Accordingly, but for a narrow exception to the general rule (which has no application in the present case), neither the Crown, nor the courts for that matter, can deny an informant their protection of confidentiality and anonymity. Needless to say, perhaps, confidential informant privilege is not qualified by any R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326; 68 C.C.C. (3d) 1, disclosure obligations of the Crown and is simply not a legal right that can be weighed or balanced against other competing rights or interests. Rather, it is an absolute legal rule that is not subject to, or dependent upon, the discretion of any judge. See: R. v. Omar, 2007 ONCA 117; 84 O.R. (3d) 493, at para. 38; R. v. Leipert, 1997 CanLII 367 (SCC), [1997] 1 S.C.R. 281; 112 C.C.C. (3d) 385, at paras. 12-14, 17, 23-25; Bisaillon v. Keable, 1983 CanLII 26 (SCC), [1983] 2 S.C.R. 60; 7 C.C.C. (3d) 385.
20Confidential informant privilege protects against the disclosure not only the name of the informant, but also protects against disclosure of any information which might impliedly reveal their identity. See: R. v. Leipert, at para. 18. Accordingly, confidential informant privilege is a legal rule that is necessarily broad in its scope and coincident legal protection, effectively directing judges to err on the side of caution when ruling on the potential disclosure of information touching confidential informants. The potentially fatal consequences of inadvertently disclosing information that might identify an informant has led to the creation of a jurisprudential "caution" to judges to beware of the false sense of confidence that any information that is disclosed will not lead to the identification of the informant. The confidence that judges may have about their own abilities to carefully edit out information that might potentially identify an informant, is "probably misplaced" and "possibly dangerously so." Judges are reminded, in this regard, that confidential informant privilege is a "hallowed" rule which must be "respected scrupulously." See: R. v. Omar, at para. 41; R v Leipert (1996), 1996 CanLII 471 (BC CA), 106 C.C.C. (3d) 375; 47 C.R. (4th) 31 (B.C.C.A.), at para. 35; affirmed: 1997 CanLII 367 (SCC), [1997] 1 S.C.R. 281; 112 C.C.C. (3d) 385.
21The critical importance of confidential informant privilege, and the potentially deadly consequences of violating it, have led the courts to conclude that the privilege does not end even with the death of the informant. This is so because, if the identity of the confidential informant is revealed even after their death, vengeful and dire consequences may still be visited upon their still living family members. See: R. v. Unnamed Person, [2008] O.J. No. 5908 (S.C.J.), at paras. 36-38; R. v. Anderson, 2013 SKCA 92; 300 C.C.C. (3d) 296, at paras. 138-143; R. v. Burgher, 2014 ONSC 3239; 2014 ONSC 3239 (CanLII), [2014] O.J. No. 6448, at paras. 91-94.
22Most recently, just late last year, the Supreme Court of Canada unanimously affirmed the continuing validity of the operation of this critically important rule, and helpfully sought to explain its ongoing rationale, application and broad scope. More specifically, in Canadian Broadcasting Corp. v. Named Person, 2024 SCC 21, the unanimous court stated, as follows, at paras 33-44:
This Court has had many occasions to emphasize the crucial role played by informer privilege in furthering the effectiveness of criminal investigations, the maintenance of public order and the protection of the public. For example, in R. v. Durham Regional Crime Stoppers Inc., 2017 SCC 45, [2017] 2 S.C.R. 157, Moldaver J. eloquently explained the rationale for informer privilege and the reason why it ultimately serves the public interest:
As with all privileges, informer privilege is granted in the public interest. Informers pass on useful information to the police which may otherwise be difficult or even impossible to obtain. They thus play a critical role in the investigation of crime and the apprehension of criminals. The police and the criminal justice system rely on informers – and society as a whole benefits from their assistance: see R. v. Leipert, 1997 CanLII 367 (SCC), [1997] 1 S.C.R. 281, at para. 9; R. v. Barros, 2011 SCC 51, [2011] 3 S.C.R. 368, at para. 30. In fulfilling this important role, informers often face the risk of retribution from those involved in criminal activity: Leipert, at para. 9. Accordingly, informer privilege was developed to protect the identity of citizens who provide information to law enforcement: ibid. By protecting those who assist the police in this manner – and encouraging others to do the same – the privilege furthers the interests of justice and the maintenance of public order: see R. v. Hiscock (1992), 1992 CanLII 2959 (QC CA), 72 C.C.C. (3d) 303 (Que.C.A.), at p. 328, leave to appeal refused, [1993] 1 S.C.R. vi. [Emphasis added; para. 12.]
Similarly, in Vancouver Sun, LeBel J., dissenting but not on this point, aptly noted that "the social justification for this privilege [is] found in the need to ensure performance of the policing function and maintenance of law and order" and that this protection is ultimately granted not in the interest of the informer, "but in the interest of more effective law enforcement" (para. 111, citing R. v. Hiscock (1992), 1992 CanLII 2959 (QC CA), 72 C.C.C. (3d) 303 (Que. C.A.), and quoted in Durham, at para. 12).
Informer privilege is of such importance that it has repeatedly been characterized as "absolute" or "near absolute". This characterization can be explained by the fact that the privilege is non‐discretionary, in the sense that its recognition does not depend on any balancing of interests. This means that once informer status is established, courts are not permitted to weigh the maintenance or scope of the privilege on a case‐by‐case basis in light of the circumstances of the case and competing legitimate interests, such as the level of risk faced by the informer, the pursuit of truth or the preservation of public confidence in the administration of justice (see Vancouver Sun, at paras. 4, 22, 26 and 55; R. v. Leipert, [1997] 1 S.C.R. 281, at paras. 12 and 14; R. v. Basi, 2009 SCC 52, [2009] 3 S.C.R. 389, at paras. 22 and 37; R. v. National Post, 2010 SCC 16, [2010] 1 S.C.R. 477, at para. 42; Barros, at paras. 1, 30 and 35; Durham, at paras. 1, 11 and 14‐15; Brassington, at para. 36; Canada (Transportation Safety Board) v. Carroll‐Byrne, 2022 SCC 48, at paras. 6 and 8; J. Fournier, "Les privilèges en droit de la preuve: un nécessaire retour aux sources" (2019), 53 R.J.T.U.M. 461, at pp. 489, 491‐92 and 495).
The informer privilege rule applies in civil, administrative and criminal proceedings and admits but one exception, under the criminal law, in cases where this is "necessary to establish innocence in a criminal trial" (Vancouver Sun, at para. 27). The exception is a narrow one that is distinct from the broader right of an accused to make full answer and defence (see Basi, at paras. 22, 37 and 43; Bisaillon v. Keable, 1983 CanLII 26 (SCC), [1983] 2 S.C.R. 60, at pp. 93 and 107; Barros, at paras. 28 and 34; Durham, at para. 14; Brassington, at para. 36; Vancouver Sun, at para. 26; Hubbard and Doherty, at §§ 2:7 and 2:13).
This privilege belongs "both to the Crown and to the informer and neither can waive it without the consent of the other" (Durham, at para. 11, citing Vancouver Sun, at para. 25). As long as its application has not been validly waived, the police, the Crown and the courts have a duty to keep the identity of informers confidential. These three actors are part of the very limited circle of privilege, which the courts have refused to widen to include, for example, defence counsel or the syndic of the Barreau du Québec (see Vancouver Sun, at paras. 21 and 25‐26; Basi, at paras. 44‐45; Barros, at para. 37; Bilodeau v. Directeur des poursuites criminelles et pénales, 2020 QCCA 1267; D.M. Paciocco, P. Paciocco and L. Stuesser, The Law of Evidence (8th ed. 2020), at p. 334).
In the case of the courts, the duty to keep a police informer's identity confidential means that they do not have "any discretion to disclose . . . information [that might tend to identify the informer] in any proceeding" (Vancouver Sun, at para. 30), even where limiting the scope of the privilege in a particular case would allow "more complete justice" to be done (Bisaillon, at p. 102). The application of the privilege is not subject to any formal requirement, and judges must even ensure respect for it of their own motion (see Bisaillon, at p. 93). Therefore, contrary to the arguments made by the Canadian Broadcasting Corporation et al. (A.F., at paras. 68 and 79), the test developed in Dagenais v. Canadian Broadcasting Corp., 1994 CanLII 39 (SCC), [1994] 3 S.C.R. 835, and R. v. Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442, and reformulated in Sherman is of no assistance, because a judge has no discretion once it is shown that informer privilege applies (Vancouver Sun, at paras. 34‐37).
In short, recognition of the non‐discretionary and thus virtually absolute nature of informer privilege means that the interests protected by the open court principle yield to those protected by informer privilege. This is a difficult societal choice in the sense that it may, in some circumstances, prevail over other very important public interest objectives – for example, promoting the accountability of the judiciary through open justice, favouring adversarial proceedings and ensuring the pursuit of truth – but it is a choice that is essential in guaranteeing the effectiveness of police investigations, the maintenance of public order and the protection of the Canadian public.
It should be emphasized that informer privilege is extremely broad in its application. It applies "to the identity of every informer: it applies where the informer is not present, where the informer is present, and even where the informer himself or herself is a witness", and it applies "to both documentary evidence and oral testimony" (Vancouver Sun, at para. 26). It "is not limited simply to the informer's name", but rather "extends to any information that might lead to identification" (para. 26 (emphasis added); see also Leipert, at para. 18; Durham, at para. 11; Brassington, at para. 48).
In practical terms, the fact that the privilege covers all information that might lead to the identification of the police informer means that the courts must always be guided by a principle of caution: any information – even the smallest detail – that may lead directly or indirectly to the identification of the informer must be kept confidential (see Leipert, at para. 18; Vancouver Sun, at paras. 26 and 30; Durham, at para. 11; Brassington, at para. 48). Furthermore, the sensitivity of information, in relation to the preservation of the informer's anonymity, must be assessed in light of the circumstances of each case, having regard to the perspective of the informer's accomplices and the members of the criminal circle to which the informer belongs. This can easily be explained by "the dual objectives which underlie the informer privilege rule [: n]ot only does the ban on revealing the informer's identity protect that informer from possible retribution, it also sends a signal to potential informers that their identity, too, will be protected" (Vancouver Sun, at para. 18).
23This lengthy quotation from a recent unanimous Supreme Court of Canada judgment usefully illustrates the continuing importance and application of the confidential informant privilege, and its near absolute practical operation to protect the identity of confidential police informants.
IV. The Charter of Rights and The Confidential Informant Privilege
24The confidential informant privilege is clearly designed to permit individuals to provide information to the police about the criminal activities of others, in return for the police making sure that their identity remains anonymous and confidential. However, in those exceedingly rare circumstances where the state has inadvertently disclosed information that might potentially disclose the identity of a confidential informant, all necessary steps must be quickly taken by the state in order to ensure, to the extent possible, that the confidential informant and their family are safely protected from any and all possible acts of revenge, designed to harm or kill the confidential informant and/or their family. In short, the state must quickly take any and all possible remedial steps to try to fix its unfortunate mistake, and continue to protect the confidential informant and their family from the potential fall-out from the inadvertent mistake by the state.
25In my view, the wrongful disclosure (even inadvertent disclosure) of facts that could identify a confidential police informer, and thereby place their life or safety at risk (or that of their family members), is a violation of their rights under s. 7 of the Canadian Charter of Rights and Freedoms. Under s. 7 of the Charter of Rights, a confidential police informant has the right to life, liberty, and the security of their person, and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
26I have reached this conclusion by virtue of the fact that, in my opinion: (1) the confidential informant privilege is a clear and long-standing legal principle; (2) there is a consensus that this legal principle is absolutely fundamental to the way in which the legal system ought fairly to operate; and (3) this legal principle is identified with sufficient precision to yield a manageable standard against which to measure any alleged deprivations of life, liberty or security of the person. See, for example: R. v. Malmo-Levine; R. v. Caine, 2003 SCC 74; [2003] 3 S.C.R. 571, at paras. 112-113; Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4; [2004] 1 S.C.R. 76, at para. 8; R. v. D.B., 2008 SCC 25; [2008] 2 S.C.R. 3, at para. 46.
27I am fortified in this view by virtue of the fact that I am convinced that it would be an "abuse of process" to permit the Crown to continue to openly pursue criminal charges against a confidential informant (however meritorious those charges might be, and regardless of the gravity of the alleged offences committed by the accused) after the state wrongfully disclosed information (even inadvertently) that could disclose their identity as a confidential informant. See: R. v. Brunelle, 2024 SCC 3; 92 C.R. (7th) 219, at paras. 1, 27-34, 55-63, 112-118. In this regard, there are a number of considerations that must be taken into account.
28First, accused persons must personally appear at their trial, and they must be in personal attendance throughout the course of their trial of those proceedings. Section 650(1) of the Criminal Code, R.S.C. 1985, chap. C-46, guarantees that important right. But, that provision of the Criminal Code would also effectively instruct any other "interested parties" as to the specific geographical location of the accused during the course of their criminal trial. That means that any public prosecution would open the accused to any act of revenge or general violence against them during the course of their trial.
29Second, if the accused was able to physically survive their trial, and is convicted, it is at least theoretically possible that they will be sentenced to a term of imprisonment, and thereafter placed in an environment that has a well-known aversion to confidential police informants, where the accused prisoner would be apt to quickly find their life or safety in grave danger.
30Similarly unacceptable results will be put in place for the family members of the confidential informant who has been wrongfully "outed" by the state as a confidential informant.
31In short, confidential police informants cannot be both: (1) prosecuted by the state for an alleged criminal offence; (2) after the state has reneged (even inadvertently) on its promise to maintain the strict anonymity and confidentiality of the identity of the accused as a confidential informant.
32Canada is a country that has not had the "death penalty" for many years. That ultimate penalty simply cannot be permitted to return to Canada incidentally, as a way of punishing confidential police informants whose identity has been wrongly disclosed by the state – the very state that has forever promised to protect their confidentiality.
V. Conclusion
33As I have already advised the parties, the criminal proceedings against the accused must be stayed. There is no other way to try to ensure that the accused will not be subjected to great violence or even killed. Unfortunately, the state has disclosed information that is apt to identify a confidential police informant. The confidential informant and their family member are now at great risk. Their lives and safety have been seriously compromised – contrary to the guarantee that was earlier made by the state. In my view, by the state's unfortunate disclosure of information that could easily lead to the identification of a confidential informant, the state has forfeited its ability to fairly prosecute the accused for their alleged offences.
34Unfortunately, no lesser remedy is adequate to fix this problem. The other potential available remedies advanced by the Crown are, in my view, clearly inadequate in all of the circumstances of this case. The Crown has suggested the imposition of two lesser remedies, namely: (1) a reduction of sentence on the accused; or (2) placing the accused in protective custody while serving any sentence of imprisonment imposed.
35First, these remedies would only apply if the accused was convicted of the offences now alleged against them. Neither remedy can have any application until the conclusion of the trial, and can simply have no application if the accused is found not guilty of the alleged offences. Second, a potential reduction of sentence would only reduce the total time that the accused should realistically worry about being harmed or potentially killed by other inmates. Obviously, any sentence of imprisonment at all would be too long in this regard. Third, suggesting that the accused serve their sentence in "protective custody" would make their actual sentence more harsh on the accused – even if it were naively assumed that an order of protective custody would thereby guarantee the safety of the accused throughout their sentence. Fourth, neither of these alternative remedies would serve to promote the confidential informant privilege generally. See: R. v. AB, 2024 ONCA 111, at para. 73-74.
36Accordingly, as I have already advised the parties, the application is granted, and the criminal proceedings against the accused are stayed.
Kenneth L. Campbell J.
Released: November 12, 2025
