Sharon Tysick

The accused, charged with first degree murder, brought a pre-trial motion seeking disclosure of the wording of an anonymous Crimestoppers tip suggesting another person may have committed the homicide.

The Crown resisted disclosure on the basis of informer privilege.

The court reviewed the strict doctrine of informer privilege and the narrow “innocence at stake” exception, requiring proof that disclosure is the only way the accused can raise a reasonable doubt.

Although the case against the accused was circumstantial and the defence proposed an alternate suspect theory, the court found that other evidentiary avenues remained available to advance that theory.

Because the accused could potentially raise a reasonable doubt through other evidence, the threshold test for the exception was not met.

The appellant appealed a summary conviction for operating a motor vehicle with a blood alcohol concentration exceeding 80 mg contrary to the Criminal Code.

The trial judge admitted breath test results despite finding an initial breach of the accused’s right to counsel, concluding the breach was attenuated and that the accused later clearly waived the right to counsel by stating “you know what? … fuck it”.

The appeal court held that the statement was equivocal and incapable of constituting a clear and unequivocal waiver of the right to counsel.

The court also found that the trial judge misapprehended the accused’s evidence regarding the meaning of the statement.

The conviction was set aside and a new trial ordered.