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Evidence - Privilege - Informer

. R. v. Sandhu

In R. v. Sandhu (Ont CA, 2020) the Court of Appeal sets out the procedure for determining confidential informant privilege:
[50] A hearing to determine the applicability of the CI privilege proceeds on the basis that the privilege does, in fact, apply: R. v. Durham Region Crime Stoppers Inc., 2017 SCC 45, [2017] 2 S.C.R. 157, at para. 35; R. v. Basi, 2009 SCC 52, [2009] 3 S.C.R. 389, at para. 44; and Named Person v. Vancouver Sun, 2007 SCC 43, [2007] 3 S.C.R. 253, at para. 47. No one outside the circle of privilege – the police, the Crown and the court – may access information over which the privilege is claimed until the presiding judge has decided that the privilege does not exist or that the single exception – innocence at stake – applies: Durham Regional, at para. 35; Basi, at paras. 43-44.

[51] At this first stage hearing, participation is limited to those within the circle of privilege. The hearing is conducted in camera and ex parte: Basi, at paras. 38, 44 and 53; Named Person, at paras. 41, 46 and 49.

[52] As we will explain, we are satisfied that the trial judge did not err in the procedure he used to conduct the first stage hearing.

[53] First, the procedure followed – an in camera, ex parte hearing, including only those within the circle of privilege – is consistent with the governing authorities. It was also the procedure proposed by trial counsel for Sandhu, the party asserting the inapplicability of the privilege. Provided an evidentiary basis exists upon which the applicability of the privilege may be determined, there is no per se rule that the CI must testify on the hearing.

[54] Second, prior to the hearing, the trial judge permitted defence counsel to file written submissions outlining their position and the result they sought.

[55] Third, also prior to the hearing, the trial judge invited and received questions formulated by defence counsel to be put to the CI handler. During the hearing, which lasted one and one-half days, the trial judge covered all areas contemplated in these questions through what he called a “vigorous cross-examination”. Among other subjects, the questions related to the CI’s identity, relationship with the police, background, motivation and potential role in the commission of the advances charged.

[56] Fourth, the procedure adopted to protect the interests of accused, despite their absence from the hearing, falls within and is best left to the discretion of the trial judge: Basi, at paras. 55, 58. Like other exercises of discretionary authority, the choices made by the trial judge are subject to substantial deference in this court.

[57] In this case, the appellants now say the trial judge erred in failing to appoint amicus or special advocate to represent their interests at the in camera, ex parte hearing and should have provided them with a judicial summary or redacted transcript of the evidence given.

[58] None of the measures now said to have fatally wounded the procedural fairness of the in camera, ex parte hearing were sought at trial. Not amicus. Not a special advocate. Not a judicial summary of the evidence adduced. Not a redacted transcript.

[59] The appellants have no unqualified right to any of these measures. Each is a matter for the trial judge who is in a better position than an appellate court confined to a lifeless transcript to decide how best to mitigate any potential unfairness arising from the in camera and ex parte nature of the proceedings: Basi, at para. 58. [60] It is worth repetition that this is not a case in which the trial judge undertook no evaluative measures. Pre-hearing submissions about the scope of the inquiry and the conclusion that should be reached. Solicitation of questions for the CI handler. Cross-examination based on those questions. Access to a Crown summary described as accurate and complete prior to final argument.

[61] Absent a request for a judicial summary or redacted transcript at trial, combined with our conclusion that the failure to do so does not reflect error, we do not consider it in the interests of justice to compose such a summary or order production of a redacted transcript to facilitate argument of the appeal under s. 683(1)(a) of the Criminal Code.

[62] Once the trial judge determined that CI privilege applied, it fell to the appellant Sandhu to establish that the disclosure sought fell within the innocence at stake exception to the CI privilege rule.

[63] It is uncontroversial that the standard to be met to pierce CI privilege – the innocence at stake test – is onerous. Infringement should only be permitted where core “issues going to the guilt of the accused are involved and there is a risk of a wrongful conviction”: R. v. Brassington, 2018 SCC 37, [2018] 2 S.C.R. 617, at para. 36; R. v. McClure, 2001 SCC 14, [2001] 1 S.C.R. 445, at para. 47.

[64] To engage the innocence at stake exception, an accused must establish that the privileged information is not available from any other source and that there is no other way for them to raise a reasonable doubt about their guilt: Brassington, at para. 37; Named Person, at para. 27. The accused must furnish a solid evidentiary basis; speculation will not do: Named Person, at para. 27; R. v. Barros, 2011 SCC 51, [2011] 3 S.C.R. 368, at para. 34; and R. v. Leipert, 1997 CanLII 367 (SCC), [1997] 1 S.C.R. 281, at para. 21.

[65] The CI privilege rule does not permit an exception for the right to make full answer and defence, nor does it permit any balancing of interests: Named Person, at paras. 28, 49; Leipert, at para. 12; Barros, at para. 35; and Durham Regional, at paras. 14-15.
. R v Cook

In R v Cook (Ont CA, 2014) the Court of Appeal took the oppourtunity to make the following salutory comments on the nature of 'informer' privilege, which - if applicable - rendered some evidence inadmissible. The issue relates mostly to criminal law:


[15] In my view, the identity of the author [SS: of an email] is not protected by either informer or public interest privilege. There is therefore no need to determine whether the “innocence at stake” exception is engaged.

[16] I turn first to the issue of informer privilege. It was submitted that the law is not clear on this point. The leading cases analyze informer privilege on the basis that some promise of confidentiality express or implied is necessary. However, in R. v. Barros, 2011 SCC 51 (CanLII), 2011 SCC 51, [2011] 3 S.C.R. 368, Binnie J. seems to have left open the question when he stated, at para. 32: “[i]t might be argued that in a situation of serious potential danger, the informer privilege (or other public interest privilege) might apply even in the absence of the contract-type elements of offer and acceptance.”

[17] In my view, this matter was settled in R. v. Named Person B, 2013 SCC 9 (CanLII), 2013 SCC 9, [2013] 1 S.C.R. 405, at para. 18, when Abella J. confirmed that there must be some conduct on the part of the police from which a promise of confidentiality could be inferred, either expressly or implicitly:
The legal question is whether, objectively, an implicit promise of confidentiality can be inferred from the circumstances. In other words, would the police conduct have led a person in the shoes of the potential informer to believe, on reasonable grounds, that his or her identity would be protected?
[18] In this case there was no conduct on the part of the police, express or implied, that could have led the author to believe that his or her identity would be protected. The police merely received an unsolicited anonymous email. The test for informer privilege is not satisfied on the facts of this case. (This is unlike a “crime stoppers” communication which is founded on a promise of anonymity.)
. R v Basi

In R v Basi (SCC, 2009) the Supreme Court of Canada re-states the accepted law of informer privilege:
[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.


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Last modified: 05-01-23
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