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EVIDENCE - Privilege - Informants - Privileged relationships - Solicitor and client

Friday, July 20, 2018 @ 1:18 PM  

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Appeals by the Crown from judgments of the British Columbia Court of Appeal and the British Columbia Supreme Court permitting disclosure by Brassington and the other accused of informer-privileged information and declaring that they were permitted to provide information about confidential informers to their legal counsel. The accused were former police officers who were charged with breach of trust, fraud and obstruction of justice in connection with their conduct with a witness who, while not a confidential informer, was under their protection during an investigation. The RCMP and the Crown told the accused that they were prohibited from discussing the circumstances of their investigations in a manner that could reveal the identity of confidential informers to anyone, including their legal counsel. One of the accused claimed he could not fully and properly instruct counsel without disclosing the identity of one or more confidential informers. In a pretrial application, the judge declared that the accused could discuss any information with counsel, holding that both informer privilege and solicitor-client communication could harmoniously co-exist. The Crown and the RCMP then brought proceedings to determine whether the communications authorized under the initial declaratory order constituted “disclosures” within the meaning of s. 37 of the Canada Evidence Act (Act), such that the Crown could object to them under that section. The judge found that she had jurisdiction to hear the s. 37 objection but dismissed it on the grounds of specified public interest. The Court of Appeal concluded that an appeal of the order under s. 37.1 of the Act was unavailable. The Crown, the RCMP and Person A, an informant, obtained leave to appeal the initial declaratory order as well as the Court of Appeal’s decision.

HELD: Appeals allowed. The application was not brought under the ordinary McClure process because the accused sought a pretrial remedy of declaratory relief, relating not to the scope of privilege, but rather to who was entitled to access information that everyone agreed was within the scope. The order sought related to the accused’s claim that declaratory relief was necessary to help them make full answer and defence in ongoing criminal proceedings. Because the judge’s declaratory order was criminal in nature and authorized a form of disclosure to which the Crown was entitled to object on public interest grounds under s. 37 of the Act, an appeal to the Court of Appeal under s. 37.1 was proper. The interconnected purposes of ss. 37 and 37.1 were to give the Crown the ability to object to disclosures on public interest grounds, and to grant an interlocutory right of appeal where it was unsuccessful. At no time had the accused argued that any privileged information in their possession met the “innocence at stake” test. Nor had they argued that any of the information relating to confidential informers was genuinely relevant to their defence. The “innocence at stake” paradigm applied because defence counsel were outside the “circle of privilege”, and it was no answer for the accused to say that the risk to the informer posed by disclosure to defence counsel was low. The law did not permit the piercing of informer privilege solely based on the speculative possibility that relevant exculpatory information could be revealed. If the accused believed that evidence pertaining to a confidential informer would have proven their innocence, they could have simply advised counsel of this without disclosing any details tending to identify the informer. The judge’s declaratory order permitting disclosure of informer-privileged information was set aside, and the Crown’s request for an order pursuant to s. 37(6) of the Act was granted.

R. v. Brassington, [2018] S.C.J. No. 37, Supreme Court of Canada, R. Wagner C.J. and R.S. Abella, M.J. Moldaver, A. Karakatsanis, C. Gascon, S. Côté, R. Brown, M. Rowe and S.L. Martin JJ., July 20, 2018. Digest No. TLD-July162018012SCC