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EVIDENCE - Methods of proof - Informants - Privilege

Friday, November 10, 2017 @ 11:50 AM  

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Appeal by Durham Regional Crime Stoppers Inc. (Crime Stoppers) and Corner from the decision of the Ontario Superior Court of Justice stating that informer privilege did not apply to the Crime Stoppers tip in the case of the 2014 shooting that resulted in the death of Niazi. Corner made a statement to the police indicating that three men were responsible for the shooting. Corner later became a suspect in the shooting and was placed under police surveillance. About a week after the shooting, Crime Stoppers received an anonymous tip from a witness that four men had waited near the crime scene before getting into a car and driving to a lake where they threw things into the water. The call was not recorded, but the information from the caller was given to the investigators at the Durham Regional Police Major Crime Unit. A few days after Crime Stoppers received the anonymous tip, Corner was charged with the second-degree murder of Niazi. The Crown brought a pre-trial application seeking to introduce evidence of the anonymous tip. The Crown maintained that the call was made by Corner to divert attention away from himself in the police investigation. It sought to use the call at trial as evidence relevant to Corner’s general credibility. Corner and Crime Stoppers submitted that the call was covered by informer privilege. The application judge found that Corner had made the call. It followed that informer privilege did not apply to the tip because its application would, in the circumstances, undermine the objectives underlying the privilege. Crime Stoppers and Corner appealed the ruling pursuant to s. 40(1) of the Supreme Court Act.

HELD: Appeal dismissed. Informer privilege did not exist where a person had contacted Crime Stoppers with the intention of furthering criminal activity or interfering with the administration of justice. In such circumstances, shielding this person’s identity behind the near absolute protection of informer privilege would compromise, if not negate, the privilege’s objectives. The application judge did not err in concluding that privilege did not apply to the Crime Stoppers tip. It was reasonable for the application judge to find, on a balance of probabilities, that Corner made the tip and that he did so to divert attention away from himself in a police investigation. This finding was well-supported by the evidence. There was no basis for interfering with the application judge’s finding that Corner was the caller and that he made the call with the intention of interfering with the administration of justice. Prior to any rulings being made by the application judge, the Crown disclosed to the defence the Crime Stoppers tip sheet and all relevant information in its possession about it. This should not have occurred. Informer privilege was not a matter of discretion for the police, the Crown, or the courts to apply. Rather, they were bound by the rule and were to assume that the privilege existed until a court had determined otherwise. The application judge adopted a reasonable procedure by holding an in camera hearing to determine whether informer privilege applied to the Crime Stoppers tip. There was no need for an ex parte proceeding in this case because the Crown had earlier disclosed the tip sheet to the defence, albeit improperly. The application judge reasonably determined that he could view the content of the tip sheet to determine whether informer privilege existed.

R. v. Durham Regional Crime Stoppers Inc., [2017] S.C.J. No. 45, Supreme Court of Canada, B. McLachlin C.J., R.S. Abella, M.J. Moldaver, A. Karakatsanis, R. Wagner, C. Gascon, S. Côté, R. Brown and M. Rowe JJ., Judgment: September 22, 2017, Reasons: November 9, 2017. Digest No. TLD-November62017011SCC