SUPREME
COURT OF CANADA
Between:
Her
Majesty The Queen
Appellant
/ Respondent on cross‑appeal
and
Udhe
Singh (Dave) Basi, Bobby Singh Virk and Aneal Basi
Respondents /
Appellants on cross‑appeal
‑ and ‑
Director
of Public Prosecutions of Canada, Attorney General of
Ontario,
Canadian Association of Chiefs of Police and
Criminal
Lawyers’ Association (Ontario)
Interveners
Coram: McLachlin
C.J. and Binnie, LeBel, Fish, Abella, Charron and Rothstein JJ.
Reasons
for Judgment:
(paras. 1 to 59)
|
Fish J.
(McLachlin C.J. and Binnie, LeBel, Abella, Charron and Rothstein JJ.
concurring)
|
______________________________
R. v.
Basi, 2009 SCC 52, [2009] 3 S.C.R. 389
Her Majesty
The Queen Appellant/Respondent
on cross‑appeal
v.
Udhe Singh
(Dave) Basi, Bobby Singh Virk
and Aneal
Basi Respondents/Appellants
on cross‑appeal
and
Director of
Public Prosecutions of Canada,
Attorney
General of Ontario,
Canadian
Association of Chiefs of Police and
Criminal
Lawyers’ Association (Ontario) Interveners
Indexed
as: R. v. Basi
Neutral
citation: 2009 SCC 52.
File
No.: 32719.
2009: April 22;
2009: November 19.
Present: McLachlin C.J.
and Binnie, LeBel, Fish, Abella, Charron and Rothstein JJ.
on appeal from the court of appeal for british
columbia
Criminal law — Evidence — Informer privilege — Objection to
disclosure of information — Whether trial judge erred in permitting defence
counsel to attend in camera hearing sought by Crown to establish claim of
informer privilege — Canada Evidence Act, R.S.C. 1985, c. C‑5,
s. 37 .
Criminal law — Appeals — Disclosure order — Crown claim of informer
privilege — Trial judge ruling that defence counsel could attend in camera
hearing sought by Crown to establish claim of informer privilege subject to
undertakings and court order — Whether Court of Appeal lacked jurisdiction to
hear Crown’s appeal — Whether trial judge’s decision constituted “disclosure
order” subject to immediate appeal — Canada Evidence Act, R.S.C. 1985,
c. C‑5, s. 37.1 .
The accused were charged with corruption, fraud, and breach of trust
under the Criminal Code . Given that some material produced on an
application for disclosure had been blacked out, defence counsel applied for
“unredacted” copies. The Crown objected, claiming informer privilege. The
Crown contended that the claim could not be properly established without live
testimony by a police officer, and insisted on an in camera and ex
parte hearing. Defence counsel objected to the ex parte nature of
the hearing and applied for permission to attend, without their clients. When
the trial judge held that defence counsel could participate fully in the in
camera hearing so long as they were subject to a court order and
undertakings, the Crown invoked s. 37 of the Canada Evidence Act
(“CEA ”), which provides for non‑disclosure where a public interest is at
stake. The trial judge affirmed her previous decision, and the Court of
Appeal, in a majority decision, dismissed the Crown’s appeal made pursuant to
s. 37.1 of the CEA and upheld the trial judge’s ruling. The Crown then
appealed to this Court on the issue of whether the trial judge erred in
permitting defence counsel to attend the in camera hearing, and the
accused cross‑appealed on the issue of whether the Court of Appeal had
jurisdiction to hear the Crown’s appeal.
Held: The appeal should be allowed and
the cross‑appeal dismissed.
While everyone charged with a criminal offence in Canada is
constitutionally entitled to full and timely disclosure of all relevant
material under the control of the Crown, the entitlement to disclosure is
neither absolute nor unlimited. Where informer privilege has been claimed by
the Crown, an accused’s constitutional right to make full answer and defence
does not alone trigger an exception to the privilege. It is only where
innocence is at stake that the privilege yields and information tending to
reveal the identity of the informant can be disclosed. The strictness of the
privilege is not relaxed when s. 37 of the CEA is invoked to protect it,
and the privilege is not amenable to the sort of public interest balancing
contemplated by s. 37(5) . No one outside the circle of privilege may
access information over which the privilege has been claimed until a judge has
determined that the privilege does not exist or that an exception applies. It
follows that the trial judge erred in permitting defence counsel to attend the in
camera hearing to determine the existence of an informer privilege where,
in the course of the hearing, information tending to reveal the identity of the
putative informer is bound to be revealed. However, where a hearing is
required to resolve a Crown claim of privilege, the accused and defence counsel
should be excluded from the proceedings only when the identity of the
confidential informant cannot be otherwise protected. And, even then, only to
the necessary extent. The trial judge will be in a better position to decide
how best to craft safeguards that mitigate any potential unfairness arising
from the ex parte nature of the proceedings. Lastly, s. 650 of the
Criminal Code applies only to the presence of the accused at trial and
has no application to the trial judge’s decision under s. 37 of the CEA .
An application under s. 37 is a discrete proceeding, separate from and
only ancillary to the criminal trial, and is therefore not caught by
s. 650 . [1] [22-23] [34] [43‑44] [50] [53] [58]
The trial judge’s decision amounted to a “disclosure order” within
the meaning of s. 37.1 of the CEA and the Court of Appeal had jurisdiction
to hear the Crown’s appeal. The inevitable result of the trial judge’s
decision was to require the Crown to reveal to defence counsel information over
which the informer privilege had been claimed. As defence counsel are outside
the “circle of privilege”, permitting them access to this information — even
subject to court orders and undertakings — constitutes inevitable disclosure of
the information. While the trial judge sought to restrict this disclosure of
privileged information to defence counsel by prohibiting them from sharing it
with any one else, her decision constituted an order of disclosure
nonetheless. Furthermore, the trial judge clearly stated that her decision was
subject to immediate appeal under the CEA . [30] [32]
Cases Cited
Applied: Named Person v. Vancouver
Sun, 2007 SCC 43, [2007] 3 S.C.R. 253; referred to: R. v. Fisk
(1996), 108 C.C.C. (3d) 63; Mills v. The Queen, [1986] 1 S.C.R. 863; R.
v. Leipert, [1997] 1 S.C.R. 281; R. v. Stinchcombe, [1991] 3 S.C.R.
326; R. v. G, [2004] EWCA Crim 1368, [2004] 2 Cr. App. R. 37
(p. 630); R. v. Pilotte (2002), 156 O.A.C. 1; Charkaoui v.
Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350.
Statutes and Regulations Cited
Canada Evidence Act, R.S.C. 1985, c. C‑5, ss. 37 , 37.1 , 37.2 .
Canadian Charter of Rights and Freedoms, s. 7 .
Criminal Code, R.S.C.
1985, c. C‑46, s. 650 .
Authors Cited
Hubbard, Robert W., Susan
Magotiaux and Suzanne M. Duncan. The Law of Privilege in Canada.
Aurora, Ont.: Canada Law Book, 2006 (loose‑leaf updated May 2009,
release No. 8).
APPEAL from a judgment of the British Columbia Court of
Appeal (Finch C.J.B.C. and Ryan and Donald JJ.A.), 2008 BCCA 297, 257
B.C.A.C. 253, 432 W.A.C. 253, 235 C.C.C. (3d) 383, 59 C.R. (6th) 165, [2008]
B.C.J. No. 1300 (QL), 2008 CarswellBC 1436, affirming a decision of
Bennett J., 2007 BCSC 1898, 170 C.R.R. (2d) 275, [2007] B.C.J.
No. 2816 (QL), 2007 CarswellBC 3162. Appeal allowed and cross‑appeal
dismissed.
William S. Berardino,
Q.C., Janet L. Winteringham, Q.C., Michael Sobkin and
Andrea N. Mackay, for the appellant/respondent on cross‑appeal.
P. Michael Bolton,
Q.C., and Claire E. Hatcher, for the respondent/appellant on
cross‑appeal Udhe Singh Basi.
Joseph J. Blazina and
Kevin G. McCullough, for the respondent/appellant on cross‑appeal
Bobby Singh Virk.
Joseph M. Doyle
and Erin D. Dance, for the respondent/appellant on cross‑appeal
Aneal Basi.
W. Paul Riley
and François Lacasse, for the intervener the Director of Public
Prosecutions of Canada.
Robert W. Hubbard
and Christopher Webb, for the intervener the Attorney General of
Ontario.
Greg Preston and Mark
Unchulenko, for the intervener the Canadian Association of Chiefs of
Police.
Anil K. Kapoor
and Lindsay L. Daviau, for the intervener the Criminal Lawyers’
Association (Ontario).
The judgment of the Court was delivered by
Fish J. —
I
[1]
Everyone charged with a criminal offence in Canada is constitutionally
entitled to full and timely disclosure of all relevant material under the
control of the Crown. To withhold that material without justification is to
jeopardize impermissibly the right of the accused to make full answer and
defence. The entitlement to disclosure must therefore be broadly construed.
But it is neither absolute nor unlimited.
[2]
The limit that concerns us here is a function of the “informer
privilege”, which prohibits disclosure of the identity of confidential
informants.
[3]
More particularly, we are required to decide whether the trial judge
erred in permitting defence counsel to attend the in camera hearing
sought by the Crown to establish its claim of informer privilege. With
respect, I believe that she did.
[4]
The judge’s order was intended to safeguard the privilege by prohibiting
defence counsel from disclosing to anyone, including the accused — their own
clients — anything they learned at the hearing. In fact, however, the
order exposed the privilege to imminent demise, since information tending to
reveal the identity of the putative informer was bound to be revealed in the
course of the hearing. Defence counsel would thus have been made privy to what
the informer privilege is meant to deny them.
[5]
For the reasons of Ryan J.A., dissenting at the Court of Appeal, and for
the reasons that follow, I would therefore allow the Crown’s appeal and return
the case to the trial court for determination of the Crown’s claim of informer
privilege in accordance with the procedure set out below.
II
[6]
The respondents are charged with corruption, fraud, and breach of trust
in relation to the sale of B.C. Rail’s freight railway operations by the
provincial government. The decision on appeal was one of a series of pre‑trial
orders arising out of a lengthy application for disclosure. In response to
their requests, the accused received more than 100,000 documents, including
police notes and reports that had been redacted. Some pages were completely
blacked out.
[7]
Defence counsel applied to the court for “unredacted” copies. The Crown
objected, claiming the informer privilege.
[8]
The trial judge, Bennett J. (as she then was), proposed that the Crown
submit the documents in question under seal, accompanied by an affidavit
explaining the basis upon which the privilege was claimed. The trial judge
preferred to test the privilege on a paper record that could be edited to
protect the privilege, while permitting counsel to respond to the claim.
[9]
The Crown contended that it could not properly establish its claim of
privilege without approximately one hour of live testimony by a police
officer. And the Crown insisted on an in camera and ex parte
hearing for that purpose.
[10] Defence
counsel objected to the ex parte nature of the hearing and applied for
permission to attend, without their clients. They agreed to submit to a court
order and undertakings not to divulge any privileged information to anybody,
including the accused. Counsel had obtained authorizations from their clients
in this regard.
[11] Bennett
J., relying in part on R. v. Fisk (1996), 108 C.C.C. (3d) 63 (B.C.C.A.),
held that so long as defence counsel were subject to the court order and
undertakings, they could participate fully in the in camera hearing:
2007 BCSC 1888, 170 C.R.R. (2d) 260. Justice Bennett’s reasons were based both
on the common law of privilege and s. 650 of the Criminal Code, R.S.C.
1985, c. C-46 , which establishes an accused’s right to remain present at
trial.
[12] In the
course of her reasons, Bennett J. noted that the Crown could invoke s. 37 of
the Canada Evidence Act, R.S.C. 1985, c. C-5 (“CEA ”), which provides for
non‑disclosure where a public interest — such as the informer privilege —
is at stake. Importantly, the CEA provides the Crown with an immediate right
of appeal of certain evidentiary orders.
[13] Section
37(1) reads:
37. (1) Subject to sections 38 to 38.16, a
Minister of the Crown in right of Canada or other official may object to the
disclosure of information before a court, person or body with jurisdiction to
compel the production of information by certifying orally or in writing to the
court, person or body that the information should not be disclosed on the
grounds of a specified public interest.
[14] The
Crown invoked s. 37 upon the release of the Justice Bennett’s reasons. The
next day, Justice Bennett issued additional reasons, affirming that even under
s. 37 , defence counsel could attend the in camera hearing, subject to
undertakings and a court order: 2007 BCSC 1898, 170 C.R.R. (2d) 275. The Crown
immediately inscribed the appeal that concerns us here.
[15] In the
Court of Appeal (2008 BCCA 297, 59 C.R. (6th) 165), Finch C.J.B.C. held that
the court lacked jurisdiction to hear the Crown’s appeal. In his view, Bennett
J.’s decision did not amount to a “disclosure order” within the meaning of s.
37.1 of the CEA and was for that reason not subject to immediate appeal under
that provision. In the alternative, Chief Justice Finch held that the
procedure devised by the trial judge was permissible. Donald J.A. concurred on
the latter ground only.
[16] Ryan
J.A. dissented. She found that the trial judge’s decision did indeed constitute
a “disclosure order” subject to immediate appeal under the CEA . With regard to
the substance of Bennett J.’s order, Justice Ryan concluded that the presence
of defence counsel at the in camera hearing would result in a breach of
the informer privilege.
[17] In
Justice Ryan’s view, the court order and undertakings not to disclose did not
cure this breach. As the sole exception to the privilege — where innocence is
at stake — was not engaged, defence counsel could not be permitted to attend
the hearing.
[18] The Crown
now appeals, with leave, to this Court. And the accused, in their cross‑appeal,
submit that the Court of Appeal lacked jurisdiction to hear the Crown’s
“interlocutory” appeal (Factum of Mr. Virk on Cross‑Appeal, at para.
14). I shall first consider the jurisdictional issue and then turn to the
merits of Justice Bennett’s order.
III
[19] The
Court has indeed held, as the appellant submits, that “all criminal appeals are
statutory and that there should be no interlocutory appeals in criminal
matters”: Mills v. The Queen, [1986] 1 S.C.R. 863, at p. 959. This is,
of course, a criminal matter, but the appeal relates to an incidental and
separate proceeding under s. 37 of the CEA and Parliament has expressly
provided in ss. 37.1 and 37.2 of the CEA for an immediate appeal as of right to
the court of appeal, and further appeals, with leave, to this Court.
[20] This
right of appeal is limited by the CEA , however, to a “determination under any
of subsections 37(4.1) to (6) ”. Section 37(6) is concerned with prohibition
orders and has no application here. The jurisdiction of the Court of Appeal
thus depended on whether the trial judge’s decision amounted to a determination
under either s. 37(4.1) or s. 37(5) .
[21] Section
37(4.1) provides that a court “may authorize by order the disclosure of the
information” over which privilege is claimed “[u]nless the court . . .
concludes that the disclosure . . . would encroach upon a specific public
interest”. Section 37(5) adds that even where a specified public interest is
engaged, disclosure may nevertheless be ordered — subject to conditions — if
the public’s interest in disclosure outweighs a specified public interest that
militates against disclosure.
[22] The
“specified public interest” at issue in this case is the protection of the
identity of informers, more generally known as the “informer privilege”. The
informer privilege is a class privilege, subject only to the “innocence at
stake” exception. It is not amenable to the sort of public interest balancing
contemplated by s. 37(5): R. v. Leipert, [1997] 1 S.C.R. 281, at paras.
12‑14. I shall have more to say later about the purpose and scope of the
privilege.
[23] When
s. 37 is invoked to protect the informer privilege — a relatively rare
occurrence, since the claim of privilege will usually be settled under the
common law alone — its strictness is not relaxed. See R. W. Hubbard, S.
Magotiaux and S. M. Duncan, The Law of Privilege in Canada (loose-leaf),
at p. 3‑44.
[24] Recognizing
the unique nature of the informer privilege, the trial judge found it
unnecessary to engage in the “balancing” required under s. 37(5). She held
instead that the substantive law on the scope of the privilege permitted
defence counsel to attend the in camera hearing she had ordered.
[25] In the
language of s. 37(4.1), then, the trial judge concluded that in camera
disclosure to defence counsel, subject to a court order and undertakings, did
not encroach upon the “specified public interest” — that is, the informer privilege
invoked by the Crown. In my view, this decision amounts to an order for
disclosure — albeit extremely limited disclosure — under s. 37(4.1).
[26] The
respondents — appellants on the cross‑appeal — raise two main arguments
in support of the contrary conclusion that the trial judge’s decision was not
an order of disclosure subject to immediate appeal.
[27] First,
they submit that the trial judge’s decision was not an order of disclosure, but
only a “procedural ruling” (Factum of Mr. U. S. Basi on Appeal and Cross‑Appeal,
at para. 37; Factum of Mr. Virk on Cross‑Appeal, at para. 39; Factum of
Mr. A. Basi on Appeal and Cross‑Appeal, at para. 164).
[28] Second,
even if the decision can be characterized as an order, respondents contend that
it did not authorize disclosure, but merely prescribed a procedure to be
followed in determining whether the informer privilege had been established.
The respondents contend that the CEA does not contemplate immediate appeals of
“procedural” decisions of this sort.
[29] In my
view, these arguments all fail: They favour form over substance and recast the
judge’s order in an erroneous light.
[30] The
inevitable result of the trial judge’s decision was to require the Crown to
reveal to defence counsel information over which the informer privilege had
been claimed. As defence counsel are outside the “circle of privilege”,
permitting them access to this information — even subject to court orders and
undertakings — constitutes inevitable disclosure of the information.
And while the trial judge sought to restrict this disclosure of privileged
information to defence counsel, who were prohibited from sharing it with anyone
else, her decision constituted an order of disclosure nonetheless.
[31] If
there remained any doubt as to the nature of the trial judge’s decision, the
trial judge settled it herself. The last sentence of her additional reasons
reads:
The in camera [hearing] is suspended to give
the Crown the opportunity to determine whether it wishes to appeal this ruling,
which it has the right to do under s. 37 of the Canada Evidence Act .
[para. 23]
[32] The
trial judge could not have been more clear that she was making a determination
that was properly subject to immediate appeal. There is no reason to conclude
that the trial judge misunderstood the nature and consequences of her own
order.
[33] I
would therefore dismiss the cross‑appeal.
IV
[34] The
decisive question on this appeal is whether defence counsel can be permitted to
attend an in camera hearing to determine the existence of an informer
privilege where, in the course of the hearing, information tending to reveal
the identity of the putative informer is bound to be revealed.
[35] Before
turning to that issue, it will be helpful to consider generally the purpose,
scope and operation of the informer privilege and the governing principles set
out by Bastarache J. in Named Person v. Vancouver Sun, 2007 SCC 43,
[2007] 3 S.C.R. 253.
[36] The
privilege arises where a police officer, in the course of an investigation,
guarantees protection and confidentiality to a prospective informer in exchange
for useful information that would otherwise be difficult or impossible to
obtain. In appropriate circumstances, a bargain of this sort has long been
accepted as an indispensable tool in the detection, prevention and prosecution
of crime.
[37] The
informer privilege has been described as “nearly absolute”. As mentioned
earlier, it is safeguarded by a protective veil that will be lifted by judicial
order only when the innocence of the accused is demonstrably at stake.
Moreover, while a court can adopt discretionary measures to protect the
identity of the informer, the privilege itself is “a matter beyond the
discretion of a trial judge” (Named Person, at para. 19).
[38] Whenever
informer privilege is claimed, or the court of its own motion considers that
the privilege appears to arise, its existence must be determined by the court in
camera at a “first stage” hearing. Even the existence of the claim cannot
be publicly disclosed. Ordinarily, only the putative informant and the Crown
may appear before the judge. In Named Person, however, the Court
considered that an amicus curiae may be necessary or appropriate,
particularly where the interests of the informant and the Crown are aligned: Named
Person, at para. 48.
[39] In
determining whether the privilege exists, the judge must be satisfied, on a
balance of probabilities, that the individual concerned is indeed a
confidential informant. And if the claim of privilege is established, the
judge must give it full effect. As we have seen, Named Person established
that trial judges have no discretion to do otherwise.
[40] Finally,
the informer privilege belongs jointly to the Crown and to the informant.
Neither can waive it without the consent of the other.
[41] Though
Named Person held that “first stage” hearings must be held in camera,
the Court was not called upon to consider whether the hearings must proceed ex
parte as well. That is because the privilege was claimed in that case by
the informant — the very person before the court on extradition proceedings.
And he claimed the privilege not to keep the information out of the hands of
any party to the proceedings, but rather to prevent media organizations from
accessing information relating to his activities as a police informant. In
those unusual circumstances, all of the parties to the proceeding had access to
the privileged information; it was only third parties who were excluded.
[42] Like Named
Person, this case concerns a claim of informer privilege. Unlike Named
Person, however, this case does not concern a fugitive-informant who seeks to
prevent disclosure of information to which he is already privy.
Rather, it concerns the accused, who seek to obtain disclosure of
information which the Crown feels bound to deny them. But these
distinctions, significant as they are, do not turn the tide in the respondents’
favour.
[43] It is
true, of course, that the respondents are in jeopardy of criminal conviction
and its consequences. Their right to make full answer and defence guaranteed
by s. 7 of the Canadian Charter of Rights and Freedoms is therefore
plainly engaged: R. v. Stinchcombe, [1991] 3 S.C.R. 326. The Court has
made clear, however, that the right to make full answer and defence does not
alone trigger an exception to the informer privilege: Leipert, at paras.
23‑25. It is only where innocence is at stake that the privilege yields
and information tending to reveal the identity of the informant can be
disclosed.
[44] It
thus remains as true in this case as it was in Named Person that
“[w]hile the judge is determining whether the privilege applies, all caution
must be taken on the assumption that it does apply” (para. 47). No one outside
the circle of privilege may access information over which the privilege has
been claimed until a judge has determined that the privilege does not exist or
that an exception applies. It follows that the trial judge erred in permitting
defence counsel to hear the testimony of an officer tending to reveal the
identity of the putative informant at the “first stage” hearing.
[45] To
hold otherwise is to place defence counsel in an awkward and professionally
undesirable position. The concern is not that defence counsel would
intentionally violate their undertakings or the court order; rather, it is that
respecting the undertakings and court order would, at best, strain the
necessary relationship between defence counsel and their accused clients.
[46] Defence
counsel would have to remain constantly on guard never to say or do anything,
even inadvertently, that might tend to reveal the informant’s identity. This
exceedingly onerous constraint would by its very nature “preven[t] frankness
and fette[r] the free flow of information between lawyer and client”, and
otherwise impair the solicitor‑client relationship: R. v. G,
[2004] EWCA Crim 1368, [2004] 2 Cr. App. R. 37 (p. 630), at p. 635. In certain
cases, defence counsel might feel bound to withdraw their representation,
caught in a conflict between their duty to represent the best interests of
their client and their duty to the court not to disclose or to act on the
information heard in camera: R. v. G, at pp. 635‑36.
[47] It is
true that defence counsel gave their undertakings of non-disclosure with the
consent of their clients. At the time, however, the privileged information was
otherwise inaccessible to both the accused and their counsel. Once the
information is in the hands of their counsel, the consent freely given
beforehand might understandably be viewed by the accused as consent given
without choice. And consent thought to have been given without choice, even if
not repudiated, is bound to be resented.
[48] In support
of the trial judge’s order, the respondents cite s. 650 of the Criminal Code ,
which codifies the accused’s right to be present at trial. Indeed, the trial
judge’s first decision on the common law privilege claim rested, in part, on
this provision: Section 650 was invoked by the judge in concluding that counsel
should be permitted to attend subject to a court order and undertakings.
[49] Section
650(1) reads:
650. (1) Subject to subsections (1.1) to (2)
and section 650.01, an accused, other than an organization, shall be present in
court during the whole of his or her trial.
[50] Clearly,
s. 650 has no application to the trial judge’s decision under s. 37 . By its
very terms, it applies only to the presence of the accused at trial. An
application under s. 37 of the CEA is a discrete proceeding, separate from and
only ancillary to the criminal trial. Accordingly, it is not caught by s. 650 : R.
v. Pilotte (2002), 156 O.A.C. 1, at para. 46.
[51] This
case concerns an application for disclosure only. The Crown does not seek to
rely upon the redacted portions of the documents in order to prove guilt.
Indeed, the Crown could not introduce the withheld information as evidence at
trial without providing it to the defence. This is therefore not a case where
the Crown seeks to use information against a person without permitting that
person to see the information. Compare Charkaoui v. Canada (Citizenship and
Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350.
[52] Of
course, withheld material over which the informer privilege is claimed might in
some instances assist the defence, for example, by providing a trail to other
relevant and helpful evidence, or in preparing and conducting the cross‑examination
of Crown witnesses. The withheld material might even be indicative of
innocence, while still falling outside the narrow “innocence at stake”
exception to the privilege. It is therefore essential that claims of privilege
be resolved accurately and fairly, bearing in mind that ex parte
proceedings raise serious procedural fairness concerns of particular
significance in the conduct of criminal prosecutions, where the liberty of the
accused is at stake.
[53] Where
a hearing is required to resolve a Crown claim of privilege, the accused and
defence counsel should therefore be excluded from the proceedings only when the
identity of the confidential informant cannot be otherwise protected. And,
even then, only to the necessary extent. In determining whether the claim of
privilege has been made out, trial judges should make every effort to avoid
unnecessary complexity or delay, without compromising the ability of the
accused to make full answer and defence.
[54] Throughout,
it should be remembered as well that the interest of accused persons in being
present (or, at least, represented) at any proceeding relating to the charges
they face remains a fundamental one, even where s. 650, by its very terms, has
no application. An ex parte procedure is particularly troubling when
the person excluded from the proceeding faces criminal conviction and its
consequences.
[55] In
order to protect these interests of the accused, trial judges should adopt all
reasonable measures to permit defence counsel to make meaningful submissions
regarding what occurs in their absence. Trial judges have broad discretion to
craft appropriate procedures in this regard.
[56] Measures
that a trial judge may wish to adopt in assessing a claim of informer privilege
include inviting submissions on the scope of the privilege — including argument
as to who constitutes a confidential informant entitled to the privilege — and
its application in the circumstances of the case. Defence counsel may be
invited as well to suggest questions to be put by the trial judge to any
witness that will be called at the ex parte proceeding.
[57] In
appropriate cases, fairness may require the court to provide the defence with a
redacted or summarized version of the evidence presented ex parte —
edited to eliminate any possibility of disclosing the informant’s identity — so
as to permit the trial judge to receive additional submissions from the defence
on whether the privilege applies in the particular circumstances of the case.
In particularly difficult cases, the trial judge may appoint an amicus
curiae to attend the ex parte proceeding in order to provide
assistance in assessing the claim of privilege.
[58] In the
present case, permitting defence counsel to make submissions and to propose
questions to be put by the court to the witness at the ex parte hearing
might well have been appropriate. The trial judge, however, will be in a
better position to decide how best to craft safeguards that mitigate any
potential unfairness arising from the ex parte nature of the
proceedings. The adoption of appropriate initiatives is therefore best left to
the trial judge.
V
[59] For
all of these reasons, I would allow the appeal, dismiss the cross-appeal, and
return the case to the trial court to be proceeded with in accordance with the
judgment of the Court in this case.
Appeal allowed and cross‑appeal dismissed.
Solicitors for the appellant/respondent on cross‑appeal: Hunter
Litigation Chambers, Vancouver.
Solicitors for the respondent/appellant on cross‑appeal Udhe
Singh Basi: Bolton & Muldoon, Vancouver.
Solicitors for the respondent/appellant on cross‑appeal Bobby
Singh Virk: McCullough Blazina Dieno & Gustafson, Victoria.
Solicitors for the respondent/appellant on cross‑appeal Aneal
Basi: Johnson Doricic Doyle Sugarman, Vancouver.
Solicitor for the intervener the Director of Public Prosecutions of
Canada: Public Prosecution Service of Canada, Vancouver.
Solicitor for the intervener the Attorney General of
Ontario: Attorney General of Ontario, Toronto.
Solicitor for the intervener the Canadian Association of Chiefs of
Police: Edmonton Police Service, Edmonton.
Solicitor for the intervener the Criminal Lawyers’ Association
(Ontario): Anil K. Kapoor, Toronto.