Informant privilege

Yesterday's Supreme Court of Canada decision in R. v. Basi, 2009 SCC 52 makes clear that the informant privilege will continue to be enforced in Canada.  A summary follows:

 

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 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.

 

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 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 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.

 

The trial judge's decision amounted to a "disclosure order" within the meaning of s. 37.1 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.