Case Report – BCCA holds defence counsel may attend informer privilege hearing

On July 10th, the British Columbia Court of Appeal dismissed an appeal from an order which allowed defence counsel to be present at an in camera hearing to determine whether informer privilege was validly claimed. It did so by issuing three separate judgements and, in the end, is less authoritative than it is revealing of sharp divide on a key point of criminal procedure and the law of privilege.

The dispute arose in the context of a pre-trial application for disclosure by criminal defence counsel. In response, the Crown applied to call evidence to establish informer privileged in camera, excluding the public and defence counsel.  It filed a certificate under section 37(1) of the Canada Evidence Act, which establishes a procedure for objecting to the disclosure of evidence based on a “specified public interest” and which starts with a “first stage” hearing to determine whether the privilege has been validly claimed. The presiding judge decided to allow defence counsel to attend the first stage hearing in this case, but ordered them to refrain from disclosing information revealed to anyone, including their clients, and to file written undertakings with the Court promising the same.  

On appeal, the Crown argued the judge made an order that contemplated disclosure of the informant’s identity that was improper in light of the strict nature of the informer privilege. (All parties agreed the innocence at stake exception did not apply given the dispute arose in the context of pre-trial production.) Defence counsel argued that there was no order that contemplated such a disclosure from which appeal could lie and that, alternatively, the judge exercised her discretion properly in making the order.

The outcome was carried on separate but concurring rulings by Finch C.J. and Donald J.  They held that the presiding judge had made an order that contemplated disclosure of an informant’s identity to defence counsel but that the order was made in a proper exercise of discretion under section 37(5) of the Canada Evidence Act, which permits disclosure of information that is subject of a section 37(1) certification where the public interest in disclosure outweighs the public interest specified by the Crown.

More significantly, Finch C.J. and Ryan J. differed sharply in their opinion on the presiding judge’s exercise of discretion and whether that discretion may ever be exercised in a manner that allows defence counsel to attend a first stage hearing.

Ryan J. relied heavily on the Supreme Court of Canada’s recent decision in Named Person, which stresses that the informer privilege is a class-based rule which can only be abridged if necessary to establish innocence at stake in a criminal trial.  She held that allowing defence counsel to attend at a first stage hearing under a confidentiality undertaking would breach this rule and would place defence counsel in a a conflict of interest (torn between her duty to the court and client). Finally, she held that section 37 of the Canada Evidence Act does not alter the substance of the informer privilege (despite its reference to a balancing of interests):

In my view then, s. 37 of the Canada Evidence Act gives a trial judge the discretion to determine the type of hearing he or she will conduct and determine who may attend when a specified public interest issue is certified.  But this discretion must be read in light of whatever special public interest issue is at stake.  As I read the specified public interest provisions of the Canada Evidence Act, they provide a procedure for the airing of these issues, but they do not change their substantive content.  The centrepiece of informer privilege is the protection of the identity of the informer.  Nothing in s. 37 or the following provisions can be read to dilute that requirement.  It follows that the trial judge has a discretion as to what type of hearing to hold when the issues arise, but it must always be within the parameters prescribed by the privilege itself. 

Finch C.J. was in fundamental disagreement with Ryan J.  He held that Named Person was not authoritative because it only dealt with the media’s right to be present at first stage hearing and did not entail consideration of the special discretion granted by section 37 of the Canada Evidence Act.  He said:

That a judge has a broad discretion on applications brought under s. 37 is evident from the language used in that provision.  Under s. 37(5) the Court may order disclosure, even where such disclosure will encroach on a specified public interest, if the public interest in disclosure outweighs in importance the specified public interest.  The Court may attach conditions to a disclosure order under s. 37(5).

MacDonald J. agreed with the Chief Justice’s conclusion about the existence of a discretion to invite defence counsel to a first stage hearing, but wrote a separate, short and much more reserved judgement.

R. v. Virk, Basi and Basi, 2008 BCCA 297.

Case Report – SCC says informer privilege absolute

In a judgment released October 11th, the Supreme Court of Canada weighed the interest protected by the informer privilege against the interest in open courts. An 8 – 1 majority held that informer privilege is an absolute bar on the disclosure of an informer’s identity subject only to the innocence at stake exception.

The majority strongly affirmed the mandatory character of the informer privilege. Writing for the majority, Bastarache J. said:

The informer privilege rule is mandatory (subject only to the “innocence at stake” exception). To permit trial judges wide discretion in determining whether to protect informer privilege would undermine the purposes of the rule. Part of the rationale for a mandatory informer privilege rule is that it encourages would-be informers to come forward and report on crimes, safe in the knowledge that their identity will be protected. A rule that gave trial judges the power to decide on an ad hoc basis whether to protect informer privilege would create a significant disincentive for would-be informers to come forward, thereby eviscerating the usefulness of informer privilege and dealing a great blow to police investigations.

Despite this forceful position, the majority did leave open the possibility that the rule might be the subject of a Charter challenge. It was disinclined, however, to embark on a constitutional analysis in the circumstances because the appeal was of a discretionary order.

The core of the majority judgement is directed at how the judiciary should operationalize the privilege, for even though the privilege must always be respected it is clear that a judge also has a duty to apply it in a manner that minimally impairs the open court principle. The majority recognized that meeting this duty can be challenging for judges because the parties will frequently consent to an in camera process.

In recommending a model process to assist judges in meeting this challenge, the majority held that:

  • a judge can appoint an amicus curiae for the limited purpose of addressing whether the evidence supports the conclusion that a person is a confidential informer
  • the media does not have standing to address this question
  • the media may have standing after the privilege has been established in a second hearing to address the issue of minimal intrusion
  • members of the media should be provided with notice rather than be hand picked
  • whether notice to the media is given is a matter of the judge’s discretion
  • the media should not be provided with identifying information and, more generally, should only be provided with information essential to making an argument

LeBel J. was the lone dissenter. Unlike the majority he framed the contest as between a constitutionally-protected principle (open courts) and a judge made rule that promotes the administration of justice (the informer privilege). He held that an absolute rule was not warranted because the privilege is not an end in and of itself. He also suggested that the majority should have embarked upon a constitutional analysis even though a Charter challenge to the common law rule was not formally made. Given the qualifier made by the majority, LeBel J. may some day get another chance to make his point.

Named Person v. Vancouver Sun, 2007 SCC 43.