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

Before:	The Honourable Chief Justice Finch
	The Honourable Madam Justice Ryan
	The Honourable Mr. Justice Donald

W. S. Berardino, Q.C. A. N. MacKay M. Sobkin J. L. Winteringham	Counsel for the Appellant
K. C. McCullough J. J. Blazina	Counsel for the Respondent, B. Virk
P. M. Bolton, Q.C. C. Hatcher	Counsel for the Respondent, D. Basi
J. M. Doyle	Counsel for the Respondent, A. Basi
Place and Date of Hearing:	Vancouver, British Columbia
9, 10 and 11 June 2008
Place and Date of Judgment:	Vancouver, British Columbia 10 July 2008

Written Reasons by:

The Honourable Chief Justice Finch

Concurring Reasons by:

The Honourable Mr. Justice Donald (page 25, para. 70)

Dissenting Reasons by:

The Honourable Madam Justice Ryan (page 27, para. 74)

Reasons for Judgment of the Honourable Chief Justice Finch:

[1] The issue on this appeal is whether Madam Justice Bennett erred in ordering that defence counsel may be present at an in camera hearing to determine whether informer privilege exists. The issue arose in pre-trial proceedings on an application for disclosure by the defence. The reasons for judgment of Madam Justice Bennett on making this order were pronounced on 7 December 2007 (2007 BCSC 1898). Madam Justice Bennett notes that these reasons should be read in conjunction with her reasons for judgment given on 6 December 2007 (2007 BCSC 1888) in relation to informer privilege.

[2] The Crown applied to call evidence to establish informer privilege in camera, excluding not only the public but the accused and their counsel as well.

[3] On 6 December 2007, the Crown, by its Special Prosecutor, filed a certificate under s. 37(1) of the Canada Evidence Act, R.S.C. 1985, c. C-5, certifying:

That the Crown objects to the disclosure of certain information to defence counsel on the grounds that the information is subject to informer privilege and that the presence of defence counsel in an in camera hearing will violate that informer privilege and identify the informant.

[4] On 7 December 2007 the presiding judge made this ruling:

[22] Therefore, again for the reasons given yesterday and today, the application pursuant to s. 37 of the Evidence Act is dismissed. The in camera hearing will occur with defence counsel present. The defence counsel and court staff present are bound by the following Court order:

That he or she will not disclose anything heard in the in camera hearing to anyone, including his or her client, other members of his or her law firm, their family or any members of the public without further order of this Court. Failure to comply with this order will result in a contempt of court hearing.

Written undertakings in similar language are also required to be filed by counsel.

[5] The ruling has not been reduced to a formal order.

[6] The Crown appeals. Counsel for the Special Prosecutor says that permitting defence counsel to be present at the in camera hearing will inevitably result in breach of the informer privilege asserted. Counsel says the judge failed in her unqualified duty to protect the informer privilege claimed. The “innocence at stake exception” to the informer privilege rule is not in issue.

[7] The parties do not agree as to the nature or effect of the judge’s ruling. Crown counsel says it is an order authorizing disclosure of confidential information. The Crown says the ruling will inevitably result in disclosure to defence counsel of information that will tend to identify the informer. Defence counsel says the order does not have that effect. They say the order is procedural in nature, that no order for disclosure has been made, and that this Court does not have jurisdiction under s. 37 to hear an appeal, other than from the orders specified in s. 37(4.1), (5) or (6). Alternatively, the defence say that if it is an order for disclosure, it was within the ambit of the judge’s discretion under s. 37.

[8] The relevant provisions of s. 37 are as follows:

37(1) Subject to sections 38 to 38.16, a Minister of the Crown in right of Canada or other official may object to the disclosure of information before a court, person or body with jurisdiction to compel the production of information by certifying orally or in writing to the court, person or body that the information should not be disclosed on the grounds of a specified public interest.

(1.1) If an objection is made under subsection (1), the court, person or body shall ensure that the information is not disclosed other than in accordance with this Act.

(2) If an objection to the disclosure of information is made before a superior court, that court may determine the objection.

…

(4.1) Unless the court having jurisdiction to hear the application concludes that the disclosure of the information to which the objection was made under subsection (1) would encroach upon a specified public interest, the court may authorize by order the disclosure of the information.

(5) If the court having jurisdiction to hear the application concludes that the disclosure of the information to which the objection was made under subsection (1) would encroach upon a specified public interest, but that the public interest in disclosure outweighs in importance the specified public interest, the court may, by order, after considering both the public interest in disclosure and the form of and conditions to disclosure that are most likely to limit any encroachment upon the specified public interest resulting from disclosure, authorize the disclosure, subject to any conditions that the court considers appropriate, of all of the information, a part or summary of the information, or a written admission of facts relating to the information.

(6) If the court does not authorize disclosure under subsection (4.1) or (5), the court shall, by order, prohibit disclosure of the information.

(6.1) The court may receive into evidence anything that, in the opinion of the court, is reliable and appropriate, even if it would not otherwise be admissible under Canadian law, and may base its decision on that evidence.

…

(8) A person who wishes to introduce into evidence material the disclosure of which is authorized under subsection (5), but who may not be able to do so by reason of the rules of admissibility that apply before the court, person or body with jurisdiction to compel the production of information, may request from the court having jurisdiction under subsection (2) or (3) an order permitting the introduction into evidence of the material in a form or subject to any conditions fixed by that court, as long as that form and those conditions comply with the order made under subsection (5).

…

37.1(1) An appeal lies from a determination under any of subsections 37(4.1) to (6)

…

(b) to the court of appeal of a province from a determination of a trial division or trial court of a superior court of the province.

…

37.3(1) A judge presiding at a criminal trial or other criminal proceeding may make any order that he or she considers appropriate in the circumstances to protect the right of the accused to a fair trial, as long as that order complies with the terms of any order made under any of subsections 37(4.1) to (6) in relation to that trial or proceeding or any judgment made on appeal of an order made under any of those subsections.

II.

[9] The presiding judge’s order of 7 December 2007 was one of a series made in pre-trial proceedings on a lengthy defence application for disclosure of documents. The defence were provided with many documents that had been redacted. The defence applied to “unredact the information” in the documents.

[10] The Crown asserted informer privilege over the documents. Crown counsel said that for the judge to understand the nature of the privilege claimed, it would be necessary for her to hear viva voce evidence of a police officer. Crown counsel said that simply providing the judge with the documents and an affidavit would not suffice. The Crown offered to provide, ex parte, a brief oral summary of what was necessary to an understanding of its position. The judge declined the offer.

[11] The Court heard submissions from the Special Prosecutor, counsel for the accused and various media as to whether the evidence of the proposed police witness should be heard in camera. On 3 December 2007, the judge held that the hearing to determine whether informant privilege applies must be held in camera. There is no appeal from that ruling.

[12] The judge then heard submissions from the parties as to whether s. 650 of the Criminal Code was an answer to the Special Prosecutor’s assertion that the hearing should be ex parte.

[13] Section 650 provides in part:

650(1) Subject to subsections (1.1) to (2) and section 650.01, an accused, other than an organization, shall be present in court during the whole of his or her trial.

Subsection (2) says

The court may …

(b) permit the accused to be out of court during the whole or any part of his trial on such conditions as the court considers proper …

[14] All three accused gave their counsel instructions, as an alternative to being present personally, to either consent to a Court order or to enter into an undertaking not to disclose any information heard in camera that discloses information regarding the identity of the informer, if such information were presented.

[15] On 6 December 2007 the judge gave reasons dealing with the application of s. 650 and concluded:

[32] I conclude that counsel for the accused should be present for the in camera hearing on giving certain undertakings and being subjected to a Court order regarding disclosure of that information.

[16] The judge went on to discuss s. 37 of the Canada Evidence Act and the case law in which s. 37 was applied. She then adjourned the proceedings so that the Crown could consider whether it wished to invoke s. 37. That resulted in the Special Prosecutor filing the certificate referred to at the outset of these reasons, and the order against which the Crown now appeals.

[17] The issue raised on this appeal is whether the judge erred in ruling that defence counsel could be present at the in camera hearing to determine whether informer privilege exists, in the terms of the order set out earlier. The further issue is whether that ruling is one against which the Crown may appeal under s. 37 of the Canada Evidence Act.

III.

[18] The Crown relies heavily on Named Person v. Vancouver Sun, 2007 SCC 43, 285 D.L.R. (4^th) 173, as authority supporting its position that counsel for the appellants should be excluded from the in camera hearing to determine whether informer privilege exists. The judge did not agree that Named Person supported that position. In her reasons of 6 December 2007 she said:

[31] I do not conclude that the decision in Named Person results in the exclusion of counsel for the accused from the courtroom when conducting an in camera hearing. Although the decision refers to the only persons being present being the informant and the Attorney General, it is in the context of whether the media should be present. The court does not consider the question of whether the accused should be present because it did not arise in that case. The informant and the person sought were one in the same. I do not think that the Supreme Court of Canada would deprive the accused of such a fundamental right by inference. It is also clear from such cases as Fisk that although there are times when an accused can be excluded under s. 650(2)(b), their counsel would not usually be excluded.

[19] Named Person was not a criminal case, and it did not involve the interpretation or application of s. 37. Before discussing it further I will refer to the authorities that do consider s. 37.

[20] R. v. Meuckon (1990), 57 C.C.C. (3d) 193 (B.C.C.A.), was an appeal from conviction for trafficking in cocaine. A number of grounds of appeal were raised, one of which involved Crown privilege. At trial Crown counsel objected to a line of questions in cross-examination on the ground that the answer would expose police methods and might endanger other police officers. The trial judge sustained the objection.

[21] On appeal, this Court held that the objection was essentially a claim of Crown privilege governed by s. 37. Mr. Justice Lambert, for the Court, said:

In my opinion, Crown counsel can object to the disclosure of information under s. 37 by certifying orally that the information should not be disclosed on the ground of a public interest, which he must specify, in relation to police practices. If the public interest involved is not in relation to prosecutorial or police practices, it may be that some other public official would be required to certify that the information should not be disclosed, and to specify the public interest which is said to prevent the disclosure.

If an objection is made, and the public interest is specified, then the trial judge may examine or hear the information in circumstances which he considers appropriate, including the absence of the parties, their counsel, and the public. Whether the trial judge does hear or examine the information, or whether he does not, the trial judge may then either uphold the claim of Crown privilege or order the disclosure of the information either with conditions or unconditionally.

[22] He concluded:

In short, the trial judge should consider whether the public interest in allowing the accused to make full answer and defence to a criminal charge can be overridden by the interest asserted by the Crown. The ultimate safeguard of the privileged information lies in the Crown’s power to enter a stay of proceedings.

[23] R. v. Pilotte (2002), 163 C.C.C. (3d) 225 (Ont. C.A.), was an appeal from conviction of first degree murder, and of offering an indignity to the deceased’s remains. In the course of the police investigation a police informant was fitted with a listening device. He had conversations with the accused which were relayed to police. The accused made an application before trial for disclosure of all contacts between the informant and the police. The Crown objected to the disclosure of the material on the ground of informer privilege, invoking s. 37 of the Canada Evidence Act.

[24] At trial, the accused consented to a private meeting between the trial judge, Crown counsel and the investigating officer to review the material to determine what was protected from disclosure by informer privilege. The private meeting was not recorded.

[25] On appeal, counsel for the appellant contended that the appellant had been wrongly excluded from part of his trial in breach of s. 650. The Ontario Court of Appeal did not accept this submission, and ruled that the in camera, ex parte proceeding under s. 37 was not part of the trial.

[26] The Court discussed whether the trial judge erred in holding the ex parte meeting with Crown counsel. Charron J.A., as she then was, said:

[52] In the circumstances of this case, it was open to the applications judge to adopt the procedure that was suggested to him and consented to by all interested parties on the s. 37 application. There is no hard and fast rule on what procedure will be appropriate on this kind of application. Further, given the wide range of information that can form the subject matter of a s. 37 inquiry, it would not be advisable for this Court to establish any such rule. The British Columbia Court of Appeal in Meuckon, supra, recognized that the appropriate procedure to follow in reviewing the information would depend on the circumstances.

[27] She then quoted from Meuckon the passage I have quoted above.

[28] The Ontario Court of Appeal then reviewed in detail the procedure adopted by Mr. Justice Watt in R. v. Parmar (1987), 34 C.C.C. (3d) 260 (Ont. H.C.J.), where there was a similar need to preserve secrecy of material. Madam Justice Charron concluded:

[60] In my view, and I express this view with the benefit of appellate hindsight, it would have been preferable if the private meeting had been recorded, or better still, if the required assistance had been provided to the applications judge in a manner that did not involve a private meeting. However, I find no reversible error in this case where the procedure was adopted with the express consent of all interested parties. Of necessity, there must be some flexibility on the procedure that should be followed on a s. 37 inquiry. The sensitivity of the material in question will often dictate how the inquiry should be conducted. Indeed, in this case, the applications judge’s decision not to record the meeting, a decision assented to by counsel for the appellant, was informed out of that very concern for preserving the secrecy of the information.

[29] In R. v. Omar, 2007 ONCA 117, the appellant applied during trial for disclosure of the contents of a confidential informer’s file. The Crown resisted production and applied to protect the documents from disclosure. The trial judge ordered production of edited documents. The Crown then offered to make ex parte submissions or to file an ex parte affidavit. The Crown sought to call a police officer to say why the informer privilege should be maintained and why a prohibition order should be made.

[30] The Court heard the police officer’s evidence and said that it was not admissible as expert evidence. Several days later, the trial judge ordered production of the edited documents. At this point, the Crown invoked s. 37 of the Canada Evidence Act.

[31] The Ontario Court of Appeal held that there was a right of appeal under s. 37 from a mid-trial order for disclosure. The Court held that the trial judge’s order requiring disclosure of edited documents risked violating informer privilege in a manner that was contrary to settled law. Having reached that conclusion, the Court expressed no opinion on whether the procedure followed by the trial judge was in error:

[45] As I have concluded that the appeal must be allowed on other grounds, I need not deal with the issue of whether the trial judge should have permitted the Crown to make ex parte submissions or file a sealed affidavit for her eyes only on the s. 37 application or with the issue of the admissibility of Detective Healey’s fresh affidavit before this court.

[32] I would summarize here by saying that the cases dealing with the procedure to follow on an application under s. 37 appear to afford the judge considerable latitude. Meuckon says the judge “may examine or hear the information in circumstances which he considers appropriate”. Pilotte says “[t]here is no hard and fast rule on what procedure will be appropriate on this kind of application”, and that it would be inadvisable for the Court to establish any such rule (para. 52).

[33] Omar expresses no opinion on the proper procedure to follow under s. 37.

[34] 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).

[35] Under s. 37(6.1) the Court may receive anything into evidence that is reliable and appropriate, even if it would not otherwise be admissible.

[36] Most importantly, under s. 37.3(1) the judge presiding at a criminal trial may make any order necessary to protect the right of an accused to a fair trial, so long as the order complies with the terms of any order made under s. 37(4.1) to (6).

[37] Before discussing Named Person , one other case deserves comment. R. v. Fisk (1996), 108 C.C.C. (3d) 63 (B.C.C.A.), was an appeal from conviction for first degree murder. Many grounds of appeal were raised. The Court held that the jury was inadequately instructed on the central issue of credibility, and ordered a new trial.

[38] The appeal also raised an issue of informer privilege. Section 37 of the Canada Evidence Act was not relied on. Because there was to be a new trial, the Court considered whether the trial judge had erred in maintaining the privilege. Chief Justice McEachern described how the problem arose:

[56] The problem arose in this way. As part of its disclosure obligation, the Crown before trial furnished to defence counsel a copy of the notes of the investigating officer. Ten days into the trial it was noticed that two pages of notes were missing. Upon inquiry, defence counsel was given a copy of the missing two pages on his undertaking not to disclose the contents to anyone except his learned junior. The accused was not given a copy and, presumably, he still does not know what this is all about.

[57] There was then an in camera hearing during which the accused was not present. In the course of his cross-examination, the officer said that he had not believed the informant and accordingly, had not investigated his assertions. At the end of the hearing, the trial judge made an order or ruling that foreclosed any further investigation of the matter, and the trial proceeded in the usual way to its conclusion. The transcript of those proceedings, however, was sealed and did not form a part of the trial transcript. Counsel also filed separate, sealed factums on this ground of appeal.

[39] As to the procedure followed by the trial judge he said:

[62] In my view, it may have been unwise for defence counsel to accept the Crown disclosure in confidence. Such a procedure risks the confidence that accused persons should have in their counsel. That, however, is a matter for counsel to decide and I would certainly not criticize a lawyer for deciding, as a practical matter, with the consent of his client, to inform himself with what may be valuable information.

[63] I also regret exceedingly the necessity for conducting proceedings in camera, but there is no other way to explore admissibility without possibly breaching the privilege before an exception is established. Once that reality is accepted, it follows inevitably that the trial judge must have a discretion to exclude the accused. The difference between disclosing information under an undertaking of confidentiality and proceedings in camera is that the former is voluntary, while defence counsel has no choice in the latter. While there is still a risk whenever counsel cannot be completely frank and open with the client, there is some reason to be less concerned when the court has ordered proceedings leading to possible disclosure of private information to be held in camera.

[40] Fisk says that on an in camera proceeding, “the trial judge must have a discretion to exclude the accused”, and, I infer, to allow their (or their counsel’s) presence if considered appropriate (para. 63).

[41] I come back, then, to Named Person. The appellant, Named Person, was a person sought for extradition. He applied at trial for an order that the proceedings continue in camera. The Attorney General for Canada consented to the application. In camera, the appellant sought a stay of proceedings, alleging that he was a confidential police informer.

[42] Remaining in camera, the judge appointed an amicus curiae and provided him with some exhibits and documents. Media were notified. Counsel for media applied to review the documents seen by the amicus.

[43] The extradition judge allowed that application. Counsel for each media were authorized to review the documents on an undertaking of confidentiality.

[44] On appeal to the Supreme Court of Canada the Court reviewed the many authorities holding that informer privilege is absolute, subject only to the “innocence at stake exception”.

[45] In discussing the procedure to be followed, Mr. Justice Bastarache, giving judgment for the majority, said:

[44] The range of situations in which the open court principle and informer privilege are in conflict is not easy to describe in the abstract. As noted earlier, informer privilege arises most often in the course of a criminal trial, when a Crown witness is asked on cross-examination about the source of some information which led to the trial. I do not think it is necessary at this time to weigh in on the specific application of the open courts principle in such circumstances. The facts before this Court in this case present a different, less common circumstance in which the open court principle must still accommodate the protection of informer privilege. In order to see clearly how this ought to play out, I think it is useful to describe the procedure to be followed by a judge in a case of informer privilege such as the one before the Court. The procedure described below, although informed by the particular facts of this case, will nonetheless provide guidance in all cases where a question of informer privilege arises; other circumstances may of course require the court to modify this approach accordingly.

D. The Procedure to Be Followed

[45] The interface between the informer privilege rule and the open court principle in the context of a hearing where a party claims to be a confidential police informant must at the same time allow for the protection of the identity of the informer from any possibility of disclosure and the maintenance of public access to the courtroom to the greatest extent possible. In order to best illustrate how this can be achieved, I will in what follows set out a procedure to be followed in a case such as the one before the Court, where an individual who is in the midst of criminal or quasi-criminal proceedings for some reason discloses to the court his or her status as a confidential informer.

[46] In such a proceeding, the parties before the judge will be the individual and the Attorney General of Canada (or the Crown). If the individual wishes to make a claim that he or she is a confidential informer, he or she should ask the judge to adjourn the proceedings immediately and continue in camera. The proceedings will proceed in camera, with only the individual and the Attorney General present, in order to determine if sufficient evidence exists to determine that the person is a confidential informer and therefore able to claim informer privilege.

[47] While the judge is determining whether the privilege applies, all caution must be taken on the assumption that it does apply. This means that under no circumstances should any third party be admitted to the proceedings, and even the claim of informer privilege must not be disclosed. The only parties admitted in this part of the proceeding are the person who seeks the protection of the privilege and the Attorney General. It is the responsibility of the judge at this stage to demand from the parties some evidence which satisfies the judge, on balance, that the person is a confidential informer. Once it has been established on the evidence that the person is a confidential informer, the privilege applies. I cannot over-emphasize the importance of this last point. The judge has no discretion not to apply the privilege: Bisaillon v. Keable, at p. 93. If the person is an informer, the privilege applies fully.

[48] Of course, we must make allowances for the difficult position that the judge will be in, namely an in camera proceeding in which both parties – the alleged informer and the Attorney General – will often both be arguing in favour of the same conclusion. (Conceivably, of course, the Attorney General might dispute the individual’s claim to informer privilege status.) If such a circumstance should arise, the non-adversarial nature of the proceedings at this stage may cause concern. Therefore, it may be permissible in some cases for a judge to appoint an amicus curiae in order to assist in the determination of whether or not the evidence supports the conclusion that the person is a confidential informer. However, the mandate of the amicus must be precise, and the role of the amicus must be limited to this factual task. The legal issues are of another nature. The judge alone makes the legal determination that a confidential informer is present, and that the informer privilege applies. Here, the amicus was asked what was the scope of the privilege. Moreover, given the importance of protecting the confidential informer’s identity, if a trial judge decides that the assistance of an amicus is needed, caution must be taken to ensure that the amicus is provided with only that information which is absolutely essential to determining if the privilege applies. Given the mandate of the amicus in the present case, it appears that the appointment was inappropriate.

[49] In the course of the determination of whether or not the privilege applies, the proceedings will be carried on in camera. During this determination, the only parties with standing will be the Attorney General and the person claiming the protection of the privilege, in addition to an amicus with the mandate set out above, in those unusual situations in which the judge finds this to be necessary. No other parties have standing in this part of the proceeding. The reason for this is simple: since the determination of the applicability of the privilege is a simple matter of determining whether the person is indeed a confidential informer – I repeat that no balancing of competing legal interests or rights is at stake – no one else will have any arguments of value to contribute to this determination. Furthermore, allowing third parties standing at this stage would needlessly increase the risk of disclosure of the identity of the confidential informer.

[My emphasis.]

[46] Counsel for the Special Prosecutor emphasizes the statements that where the claim of informer privilege is made, the proceedings should be in camera “with only the individual and the Attorney General present” (Named Person, para. 46).

[47] In my respectful opinion the trial judge was correct in her analysis of Named Person and the conclusion she reached at para. 31 of her reasons quoted above. She had earlier said that in all the cases she reviewed preceding Named Person, none excluded counsel for the accused unless it was by consent.

[48] I conclude that it was within the trial judge’s discretion to adopt the procedure she did at the stage of determining whether informer privilege exists.

IV.

[49] The next question is whether there is an appeal from that ruling under any of the provisions of s. 37. That issue raises the question as to the meaning of the order of 7 December 2007.

[50] As indicated earlier, the Crown takes the position that the order will result in the disclosure of the informer’s identity. Counsel says that no substantive evidence can be led from the police witness he proposes to call that will not lead to the disclosure of information that may tend to identify the informer and breach the privilege protecting him.

[51] Counsel for all accused disagree. They say the ruling permitting defence counsel to be present in the in camera hearing, subject to the Court’s order of confidentiality and counsel’s undertaking, is procedural only.

[52] In support of the proposition that the judge’s order authorizes disclosure of confidential information, counsel point to various passages in the reasons of the judge on both 6 December 2007 and 7 December 2007.

[53] In the reasons of 6 December 2007, the judge said:

[16] In this case, all three accused have given their counsel instructions, as an alternative to their being present personally, to either consent to a court order or to enter into undertakings not to disclose any information heard in an in camera hearing that discloses any information regarding the identity of the informer if indeed any of that information is, in fact, presented.

…

[30] Certainly, the fewer people who have the information the less the risk of the privilege being breached whether intentionally or, more likely, through inadvertence. This applies not only to counsel, the judge and the police, but also to the court staff including the person who transcribes any transcript of the in camera proceedings.

…

[32] I conclude that counsel for the accused should be present for the in camera hearing on giving certain undertakings and being subjected to a court order regarding disclosure of that information.

[54] The argument is made that “the information” or “that information” referred to in those paragraphs could only refer to information that would tend to identify the confidential informer.

[55] The argument is advanced that if the trial judge did not intend by her order to allow defence counsel to hear information that might tend to identify the confidential informant, she would not have made the order for non-disclosure in the terms she did, nor would she have required undertakings of non-disclosure from defence counsel.

[56] Finally, reference is made to paragraph 23 of the reasons of 7 December 2007, where the trial judge expresses the view that the Crown has a right of appeal against her order.

[57] I see the force in this submission, but I am not convinced that it is entirely sound. The purpose of the in camera hearing is to determine whether there is a confidential informer, and if so whether he or she is protected by informer privilege. The judge observed in her reasons of 6 December 2007 that “here the Crown is asking the Court to determine the issue of whether the privilege applies, and from the redacted notes that I have seen, what is involved is not readily apparent. Further information is necessary” (para. 13).

[58] Similarly, in her reasons of 7 December 2007 she said:

[9] I have at this juncture been told no circumstances regarding how this person came to the police. I appreciate that even the most innocuous disclosure could breach the privilege. However, I have not even been told if the witness came to the police in confidence.

[10] The Crown, in its application, refers to the exercise of Crown discretion; however, if the informer privilege applies, then the Crown has no discretion, (nor do I), so I am not particularly clear on this reference.

And further:

[19] The point I am trying to make is that it is not clear-cut in this case whether the privilege applies and that is apparent from the Crown’s submission. It is a live issue when in most cases it is not. The Crown says it is not apparent from the documents, thus defence counsel who are far more familiar with the nuances of this case than I, given there are in excess of 200,000 pages of disclosure to date, may well have useful submissions to make on the issue of whether the privilege applies. Or they may not.

[59] In light of those unanswered questions, there is in my view considerable doubt as to whether the order of 7 December 2007 can be characterized as an order for disclosure.

[60] The defence position is that the purpose of the in camera hearing is to determine whether there is any basis on which informer privilege can be asserted. Counsel do not question the integrity of the Special Prosecutor’s certificate. They say, however, that the certificate is not enough. They say there must be some evidence on which the judge could act before making an order for disclosure. Defence counsel say they are entitled to be present to test whether, in that evidence, there is any foundation to the claim for informer privilege. They say they can properly enquire into the circumstances in which the claim to informer privilege arose, the terms upon which it was granted, if it was, and the credibility of the witness called to justify the assertion of privilege.

[61] It is also to be noted that unlike other cases under s. 37, this appeal is brought in advance of the judge’s determination of the s. 37 application. I have difficulty accepting that the effect of the trial judge’s order is to mandate the presence of defence counsel throughout the in camera hearing. As the defence has argued, the judge has not ruled that all evidence adduced on the in camera hearing must be disclosed to the defence; she has not ruled that defence counsel may not be excluded at times during the in camera proceedings; she has not ruled that a witness must answer any particular question or questions.

[62] On balance, I respectfully agree with the interpretation of defence counsel as to the nature and effect of the order pronounced on 7 December 2007. This order was made before the in camera hearing commenced. The judge made clear that she did not have information that would permit her to anticipate what might occur, nor to make an order authorizing, or prohibiting, disclosure.

[63] The judge cannot be taken to have precluded herself from conducting some part of the in camera hearing ex parte, if she considers that to be necessary. It is abundantly clear from everything the judge said in her reasons of 7 December 2007, and on her earlier rulings of 3 and 6 December 2007, that she fully understands the Court’s obligation to protect informer privilege. She has made a preliminary ruling that was within her discretion and that does not mandate disclosure of information that may tend to identify the informer. The terms of the order prohibiting disclosure of anything heard in camera, and the requirement for undertakings, appear to me to have been imposed from an abundance of caution.

[64] If I am wrong in my interpretation of the judge’s order, and it is properly to be considered an order for disclosure of confidential information, it was, on its terms, well within the discretion granted by s. 37. The Special Prosecutor said that an appeal lay against the judge’s order because it was made under s. 37(5). As mentioned earlier, that subsection gives the judge a discretion to balance the public interest in disclosure against the importance of the specified public interest. The judge was fully aware of the importance of informer privilege. She was also alive to the accused’s right to a fair trial.

[65] It appears to me to be inconsistent for the Special Prosecutor to assert on the one hand that the order was made under s. 37(5), for the purposes of supporting a right to appeal, and at the same time to deny the existence of any discretion in the judge to balance the competing interests.

[66] Finally, there are the provisions of s. 37.3 authorizing the judge to make any order necessary to protect the accused’s right to a fair trial.

[67] In my view, if the order of 7 December 2007 is an order for disclosure, it was within the judge’s discretion.

[68] In my respectful opinion, the trial judge has not made any order under s. 37(4.1), (5) or (6) from which an appeal may be taken. I consider that this appeal is premature, and that there is no right of appeal in respect of the order made on 7 December 2007.

[69] I would dismiss the appeal on the ground that this Court has no jurisdiction to entertain it.

“The Honourable Chief Justice Finch”

Reasons for Judgment of the Honourable Mr. Justice Donald:

[70] I would dismiss the appeal on the alternate ground expressed by the Chief Justice at paragraph 64 of his reasons, namely, that the order, even if it authorizes disclosure of the identity of the informant to defence counsel, lies within the discretion of the judge.

[71] I find highly persuasive the arguments for interpreting the order as one contemplating disclosure in the course of deciding whether informer privilege arises. Those arguments are summarized at paragraphs 54 to 56 of the Chief Justice’s reasons and I am not left in doubt by them.

[72] The appellant argues the impossibility of maintaining the duty not to disclose, except for innocence at stake, at the same time as bringing defence counsel into the confidential circle. In my opinion, there is no such impossibility.

[73] The sanctions against disclosure are powerful enough to keep the secret closely held. If defence counsel were to disclose the informant’s identity in breach of the court-ordered undertaking, they would likely bring their careers to an end. As to any activity in pursuit of a defence that might indirectly tip off the identity, counsel are aware they must tread carefully, as must the prosecution, and they will seek the permission of the judge prior to engaging in any such activity. In short, the force of the undertaking effectively prevents a breach of duty, while providing the respondents the right to full answer and defence. The limitations on the right created by the undertaking are accepted by the respondents as a practical compromise.

“The Honourable Mr. Justice Donald”

Reasons for Judgment of the Honourable Madam Justice Ryan:

Introduction

[74] I have had the privilege of reading the reasons for judgment of the Chief Justice and of Mr. Justice Donald in this appeal. I regret that I am unable to agree with their conclusions that this appeal should be dismissed.

[75] I am of the view that Madam Justice Bennett made an order authorizing disclosure under s. 37(4.1) of the Canada Evidence Act, R.S.C. 1985, c. C-5, and that the Crown’s appeal is properly taken to this Court under s. 37.1(1) of that Act. I have concluded that the learned trial judge erred in permitting counsel for the respondents to be present during the hearing to determine informer privilege. For the reasons that follow, I would allow the appeal and set aside the order.

The Effect of the Order

[76] Given the differing positions of the appellant and the respondents as to the effect of the order in question, it is regrettable that the parties did not obtain an entered order to clarify the order made by the learned trial judge. In hindsight it would have been preferable for this Court to reserve judgment until the parties had done so. This was the course followed by this Court when similar circumstances were presented in R. v. Gray (1993), 79 C.C.C. (3d) 332.

[77] That said, in my view it is plain that the learned trial judge made an order for disclosure. Crown counsel sought an in camera ex parte hearing to lead evidence that the subject of a defence disclosure demand was information that attracted the protection of the informer privilege rules. The Crown maintained that the evidence it would be required to lead in support of its assertion of informer privilege had to be done through the testimony of a police witness which would, by necessity, tend to reveal the identity of the alleged informant. The trial judge expressed some concern that the evidence could not be given by way of a sealed affidavit. In response to the Crown’s insistence that it required an oral hearing, the trial judge said this:

[19] … The point I am trying to make is that it is not clear-cut in this case whether the privilege applies and that is apparent from the Crown’s submission. It is a live issue when in most cases it is not. The Crown says it is not apparent from the documents, thus defence counsel who are far more familiar with the nuances of this case than I, given there are in excess of 200,000 pages of disclosure to date, may well have useful submissions to make on the issue of whether the privilege applies. Or they may not.

[78] This comment was made in the context of her earlier pronouncement in her reasons that, “in order to safeguard the right to make full answer and defence with respect to each of the accused, defence counsel are permitted to remain.” The trial judge also had made reference to the decision of the Ontario Court of Appeal in R. v. Pilotte (2002), 163 C.C.C. (3d) 225, 156 O.A.C. 1 (“Pilotte”), which she accepted as standing for the proposition that “the accused should participate in a s. 37 hearing”. The trial judge concluded her reasons with these paragraphs:

[22] Therefore, again for the reasons given yesterday and today, the application pursuant to s. 37 of the Evidence Act is dismissed. The in camera hearing will occur with defence counsel present. The defence counsel and court staff present are bound by the following court order:

That he or she will not disclose anything heard in the in camera hearing to anyone, including his or her client, other members of his or her law firm, their family or any members of the public without further order of this court. Failure to comply with this order will result in a contempt of court hearing.

Written undertakings in similar language are also required to be filed by counsel.

[23] The in camera is suspended to give the Crown the opportunity to determine whether it wishes to appeal this ruling, which it has the right to do under s. 37 of the Canada Evidence Act.

[79] In my view, these reasons demonstrate that having accepted that s. 37 of the Canada Evidence Act permits an accused to make some form of full answer and defence where the issue of informer privilege arises at trial, and, that the defence may wish to make submissions as to whether informer privilege applied in the case at bar, the trial judge ordered disclosure to defence counsel on the condition that they provide undertakings not to reveal anything disclosed in the in camera hearing. Having done that, this experienced criminal trial judge adjourned the hearing to permit the Crown an opportunity to appeal. Thus not only do the reasons support the conclusion that the trial judge made an order for disclosure under s. 37 of the Act, but the trial judge herself made it clear in her last paragraph that this is what she had done.

The Issue on Appeal

[80] This appeal is about informer privilege. The secrecy surrounding informer privilege seems at odds with our adversarial system which regards openness, transparency and the right to be heard as fundamental to achieving justice. However, informer privilege has been recognized as a legitimate tool and part of the criminal justice system. In R. v. Leipert, [1997] 1 S.C.R. 281, (1997) 4 C.R. (5th) 259 (“Leipert”), Madam Justice McLachlin, as she then was, said this at para. 9:

A court considering this issue must begin from the proposition that informer privilege is an ancient and hallowed protection which plays a vital role in law enforcement. It is premised on the duty of all citizens to aid in enforcing the law. The discharge of this duty carries with it the risk of retribution from those involved in crime. The rule of informer privilege was developed to protect citizens who assist in law enforcement and to encourage others to do the same.

[81] As a result, the protection offered to informers is powerful. Where there is a clash between the principle of informer privilege and other core values, informer privilege will prevail, with one exception, where innocence is at stake. I will return to this exception later in these reasons.

[82] In the case at bar the question of informer privilege arose in a disclosure hearing. The importance of disclosure of the fruits of the police investigation in the possession of the Crown was recognized in R. v. Stinchcombe, [1991] 3 S.C.R. 326, 8 C.R. (4th) 227, where Mr. Justice Sopinka said at p. 333:

… [T]he fruits of the investigation which are in the possession of counsel for the Crown are not the property of the Crown for use in securing a conviction but the property of the public to be used to ensure that justice is done. In contrast, the defence has no obligation to assist the prosecution and is entitled to assume a purely adversarial role toward the prosecution. The absence of a duty to disclose can, therefore, be justified as being consistent with this role.

[83] However, Mr. Justice Sopinka recognized that full disclosure will be limited when informer privilege is raised. At p. 335, he said:

Finally, it is suggested that disclosure may put at risk the security and safety of persons who have provided the prosecution with information. No doubt measures must occasionally be taken to protect the identity of witnesses and informers. Protection of the identity of informers is covered by the rules relating to informer privilege and exceptions thereto (see Marks v. Beyfus (1890), 25 Q.B.D. 494 (C.A.); R. v. Scott, [1990] 3 S.C.R. 979), and any rules with respect to disclosure would be subject to this and other rules of privilege. With respect to witnesses, persons who have information that may be evidence favourable to the accused will have to have their identity disclosed sooner or later. Even the identity of an informer is subject to this fact of life by virtue of the "innocence exception" to the informer privilege rule (Marks v. Beyfus, supra, at pp. 498-99; R. v. Scott, supra, at p. 996; Bisaillon v. Keable, [1983] 2 S.C.R. 60, at p. 93; Solicitor General of Canada v. Royal Commission of Inquiry (Health Records in Ontario), [1981] 2 S.C.R. 494). It will, therefore, be a matter of the timing of the disclosure rather than whether disclosure should be made at all. The prosecutor must retain a degree of discretion in respect of these matters. The discretion, which will be subject to review, should extend to such matters as excluding what is clearly irrelevant, withholding the identity of persons to protect them from harassment or injury, or to enforce the privilege relating to informers. The discretion would also extend to the timing of disclosure in order to complete an investigation. I shall return to this subject later in these reasons.

[84] At p. 340, Mr. Justice Sopinka noted:

The trial judge on a review should be guided by the general principle that information ought not to be withheld if there is a reasonable possibility that the withholding of information will impair the right of the accused to make full answer and defence, unless the non-disclosure is justified by the law of privilege.

[Emphasis added.]

[85] In the case at bar the Crown had provided the respondents with material, said to be police officer’s notes, with portions of the notes blacked out. The respondents applied for the “unredacted” notes. The trial judge accepted, reluctantly, the Crown’s submission that it could not deal with the issue of informer privilege by way of sealed affidavit, but was required to call the evidence by way of an oral hearing.

[86] The question on this appeal then is whether the learned trial judge was correct in permitting defence counsel to be present for the hearing to be held to determine whether there is an individual who should be protected by the informer privilege rule. In my view that question is answered by the analysis of the Supreme Court of Canada in Named Person v. Vancouver Sun, 2007 SCC 43, 285 D.L.R. (4th) 193 (“Named Person”).

Analysis

[87] In Named Person, an extradition judge gave counsel for a number of media outlets access to information which might tend to disclose the identity of an alleged police informer who was the subject of the extradition hearing. The extradition judge made the order on the condition that counsel for the press and other media provide the judge with undertakings that they would not to reveal the information to their clients, or anyone. The purpose of the order was to permit counsel to make informed arguments as to whether the extradition hearing should be carried on in camera.

[88] In overturning the disclosure order of the extradition judge, Mr. Justice Bastarache, writing for the majority, reviewed the law with respect to informer privilege and set out a procedure to be followed “in all cases where a question of informer privilege arises” adding that “other circumstances may of course require the court to modify this approach accordingly” [para. 44]. The trial judge in the case at bar determined that the distinguishing feature between Named Person and the case at bar was that the persons with the interest in disclosure in Named Person were not parties to the extradition proceeding thus, unlike the respondents at bar, had no right to make full answer and defence. For reasons which I will set out presently, I disagree that this right makes any difference to the procedure set out in the first stage of the proceedings as described in Named Person and that a like proceeding to that of Named Person should have been adopted in the case at bar.

[89] Before setting out the procedure to be followed in determining whether informer privilege applies, Mr. Justice Bastarache in Named Person reviewed the jurisprudence with respect to informer privilege. Drawing largely on that review, my understanding of the principle and its rationale is as follows:

1. Informer privilege is offered by a peace officer to an informer in the course of his or her investigative duty. The informer provides confidential information in exchange for protection and concealment of his/her identity. As explained in Bisaillon v. Keable, [1983] 2 S.C.R. 60, (1983) 7 C.C.C. (3d) 385, at para. 141:

The [informer privilege] rule gives a peace officer the power to promise his informers secrecy expressly or by implication, with a guarantee sanctioned by the law that this promise will be kept even in court, and to receive in exchange for this promise information without which it would be extremely difficult for him to carry out his duties and ensure that the criminal law is obeyed.

2. The rule recognizes that police work and the criminal justice system as a whole, depend to some degree on the work of confidential informers. (Named Person, para. 16.) Thus the informer privilege rule protects from revelation in public or court the identity of those who give information related to criminal matters in public.

3. The rationale for the rule is that shielding the informer’s identity protects the informer from possible retribution and sends a signal to potential informers that their identity will also be protected. (Named Person, para. 18.)

4. The principle of informer privilege provides an all but absolute bar against revealing any information which might tend to identify a confidential informer. (Named Person, para. 15.) Any information which might tend to identify an informer is protected by the privilege. Thus, the protection is not limited simply to the informer’s name, but extends to any information that might lead to identification. (Named Person, para. 26.)

5. The rule is a matter beyond the discretion of the court. It is a class privilege that always applies when it has been established that a confidential informer is present. If the issue arises at trial, the court is under a duty to protect the informer’s identity and has no right to disclose the informer’s identity. (Named Person, para. 22, 23.)

6. Once a claim of informer privilege has been invoked, there is a presumption that the claim is valid – as stated in Named Person at para. 47, “while the judge is determining whether privilege applies, all caution must be taken on the assumption that it does apply.”

7. The application of informer privilege is not subject to any formal requirement and, if no one raises it, the court must apply it of its own motion. (Bisaillon, para. 95).

8. The Crown and the informer “own the right”. Thus the Crown cannot disclose the informer’s identity. Nor can the informer unilaterally waive the privilege. (Named Person, para. 25.)

9. The rule does not allow an exception for the right to make full answer and defence. (Named Person, para. 28.) The informer privilege rule admits but one exception: it can be abridged if necessary to establish innocence at stake in a criminal trial. (Named Person, para. 26.)

10. According to the innocence at stake exception there must be a basis in the evidence for concluding that disclosure of the informer’s identity is necessary to demonstrate the innocence of the accused. (Named Person, para. 27.) Moreover, the disclosure must be the only way that the accused can establish his innocence. (R. v. Brown, 2002 SCC 32, [2002] 2 S.C.R. 185, para. 4.)

[90] With those principles in mind, Mr. Justice Bastarache set about describing the procedure to be followed when a question of informer privilege arises “such as the one before the Court” (para. 44).

[91] Mr. Justice Bastarache concluded that where, in the midst of criminal or quasi criminal proceedings, an individual discloses to the court his or her status as a confidential informer, the court should be asked to adjourn the proceedings and continue in camera in order to determine if sufficient evidence exists to determine that the person is a confidential informer. Mr. Justice Bastarache continued at para. 47:

While the judge is determining whether the privilege applies, all caution must be taken on the assumption that it does apply. This means that under no circumstances should any third party be admitted to the proceedings, and even the claim of informer privilege must not be disclosed. The only parties admitted on this part of the proceedings are the person who seeks the protection of the privilege and the Attorney General. It is the responsibility of the judge at this stage to demand from the parties some evidence which satisfies the judge, on balance, that the person is a confidential informer. Once it has established on the evidence that the person is a confidential informer, the privilege applies. I cannot over-emphasize the importance of this last point. The judge has no discretion not to apply the privilege: Bisaillon v. Keable, at p. 93. If the person is an informer, the privilege applies fully.

[Emphasis in the text.]

[92] Mr. Justice Bastarache then turned to discuss when the appointment of an amicus curiae would be appropriate. I will return to that possibility later in these reasons.

[93] Next, Mr. Justice Bastarache said this at para. 49:

In the course of the determination of whether or not the privilege applies, the proceedings will be carried on in camera. During this determination, the only parties with standing will be the Attorney General and the person claiming the protection of the privilege, in addition to an amicus with the mandate set out above, in those unusual situations in which the judge finds it to be necessary. No other parties have standing in this part of the proceeding. The reason for this is simple: since the determination of the applicability of the privilege is a simple matter of determining whether the person is indeed a confidential informer – I repeat that no balancing of legal interests or rights is at stake – no one else will have any arguments of value to contribute to this determination. Furthermore allowing third parties standing at this stage would needlessly increase the risk of disclosure of the identity of the confidential informer.

[Emphasis added.]

[94] Counsel for the Crown submitted that in these passages the Supreme Court of Canada has recognized that whether informer privilege exists or not is a matter entirely in the hands of the police and the informer. It is for the person relying on the privilege to satisfy the judge that it exists, without the input of a “third party”. It is only after the privilege has been established that the accused acquires an interest in balancing his or her rights to a fair trial against those of protecting the identity of the informer. It does not exist before that time.

[95] The Crown says that if informer privilege is to operate at all as a part of the criminal justice system, this is the only logical way the privilege can be established. Allowing anyone at any time, other than the informer, the police and the Crown, access to information which might reveal the informer’s identity is a risk which would undermine and soon destroy the system. Thus, a judge upon whom the duty to protect the informer’s identity rests cannot permit defence counsel to participate in an inquiry as to whether the privilege exists (the “first stage hearing”). To do so is to violate the duty placed on the judge to protect the identity of the informer.

[96] The respondents make the point, as did the trial judge, that this procedure does not apply in the case at bar because the media in Named Person were not parties to the extradition and thus, unlike accused persons, did not have the right to make full answer and defence. Therefore the media did not have the right to attend the first stage hearing. This single fact, they say, changes the whole complexion of the issue and makes Named Person irrelevant to the issues presented by a criminal trial such as the case at bar. I do not agree. Informer privilege, as noted above, does not allow an exception for the right to make full answer and defence. Informer privilege admits of only one exception – innocence at stake. (It is conceded by the respondents that in the case at bar the innocence at stake exception is not an issue at this stage in the proceedings.) In my view, the protection afforded by the informer privilege rules would be defeated if, on the first stage hearing in any given case, the identity of the informer was revealed to the accused (or his or her counsel) to allow him to make an argument that the privilege did not exist.

[97] The respondents also relied on the case of Pilotte for the proposition that the defence has the right under s. 37 of the Canada Evidence Act to make full answer and defence. They argued that this right entitled counsel to be included in the factual inquiry as to whether informer privilege covered any aspect of the documents the Crown refused to disclose. In Pilotte, defence counsel made an application in a disclosure hearing for certain material in the possession of the police. Counsel for the Attorney General of Canada objected to disclosure on a number of grounds including informer privilege. With the consent of counsel for Pilotte, the trial judge held an in camera hearing to determine whether informer privilege existed. Only counsel for the Federal Crown and the police were present with the judge. On appeal, Pilotte argued that he had been denied the right to be present for his trial pursuant to s. 650 of the Criminal Code. The Ontario Court of Appeal concluded that the s. 37 inquiry was not a part of Pilotte’s trial, and therefore s. 650 did not apply. In so finding Madam Justice Charron, as she then was, said this at para. 47:

[47] Of course, even if s. 650 does not extend to the s. 37 inquiry, the appellant had the right to be heard on the Federal Crown’s s. 37 application and the question remains whether the procedure that was adopted violated the appellant’s rights in any way. The appellant undoubtedly had an interest in the proceeding. However, it is my view that the appellant was given a full opportunity to participate in the proceeding, that his views were heard through counsel, and that he expressly consented to the procedure that was followed, including the private meeting he now objects to on this appeal. I see no merit to the contention made in this court that defence counsel’s position at trial should be disregarded because it was made without a full appreciation of the rights of his client. There is no allegation of incompetency of trial counsel in this case and, indeed, the record would not support such an allegation.

[Emphasis added.]

[98] The respondents relied on this underlined passage, but it must be examined in context. It is important to go beyond this paragraph in the reasons for judgment of Madam Justice Charron. After this statement, Madam Justice Charron addressed the procedure which ought to be adopted in a s. 37 inquiry. She noted that there was no hard and fast rule on what procedure will be appropriate on such an inquiry. She said that given the range of information that can form the subject matter of a s. 37 hearing, it would not be advisable to establish such a rule (para. 52). However, Charron J.A. did go on to review and approve the procedure adopted by the trial judge which, she said, paralleled that developed by Watt J. in R. v. Parmar (1987), 34 C.C.C. (3d) 260, a wiretap case that involved the need to protect the secrecy of material with respect to which the Crown was claiming privilege.

[99] In Parmar, the trial judge held an initial hearing with both counsel for the defence and counsel for the Crown present. The accused was excluded. Crown counsel indicated, without elaboration, his areas of concern with respect to disclosure. The trial judge then took the affidavits that were used to obtain the wiretap and edited them on his own. The trial judge said that following the initial editing, he would provide the Crown with the edited affidavit. If the Crown required further editing the trial judge said that he would do that in open court with the accused and their counsel present.

[100] For purposes of this appeal it is important to be aware that at no time did the trial judge in Parmar reveal the unedited contents of the affidavit to defence counsel. Even at the point in the proceedings where the affidavit would be further edited in open court, defence counsel would not have access to the contents of the affidavit. It was only when the editing process was complete that the affidavit would be disclosed. In other words, defence counsel were not given information which would reveal the identity of an informer.

[101] In Pilotte, the appellant did not take issue with the notion that the trial judge could review the material in secret. The complaint in Pilotte was not the absence of defence counsel, but that the judge’s review of the material took place in a private meeting with the Crown and a police officer. To that, Charron J.A. remarked that in hindsight it would have been better if the private meeting had been recorded, or that the material had been provided in a way that did not involve a private meeting. Although defence counsel’s agreement to the procedure provided a complete answer to the appeal, Charron J.A. went on to note that “the procedure suggested by counsel made sense and I see no reason why the applications judge should have refused to accede to it.” Charron J.A. next made two important observations. First, that the Crown and police involved in the s. 37 hearing had not been involved in the investigation resulting in the charges faced by Pilotte. Thus, no one saw any impropriety of their presence in assisting the judge to go through the extensive material. And second, (para.62):

… [T]he nature of the privilege that was asserted is important to keep in mind. The determination of whether the informer privilege extended to the material in question did not involve a balancing of interests as the determination of other forms of Crown privilege may entail. Hence, there was no need to receive input from appellant’s counsel on his client’s particular interests in obtaining disclosure of the material in order to determine whether the privilege existed as claimed.

[Emphasis added.]

[102] For this last proposition Charron J.A. referred to paras. 12 -14 of Leipert which state:

[12] Informer privilege is of such importance that once found, courts are not entitled to balance the benefit enuring from the privilege against countervailing considerations, as is the case, for example, with Crown privilege or privileges based on Wigmore's four-part test: J. Sopinka, S. N. Lederman and A. W. Bryant, The Law of Evidence in Canada (1992), at pp. 805-6. In Bisaillon v. Keable, supra, this Court contrasted informer privilege with Crown privilege in this regard. In Crown privilege, the judge may review the information and in the last resort revise the minister's decisions by weighing the two conflicting interests, that of maintaining secrecy and that of doing justice. The Court stated at pp. 97-98:

This procedure, designed to implement Crown privilege, is pointless in the case of secrecy regarding a police informer. In this case, the law gives the Minister, and the Court after him, no power of weighing or evaluating various aspects of the public interest which are in conflict, since it has already resolved the conflict itself. It has decided once and for all, subject to the law being changed, that information regarding police informers' identity will be, because of its content, a class of information which it is in the public interest to keep secret, and that this interest will prevail over the need to ensure the highest possible standard of justice.

Accordingly, the common law has made secrecy regarding police informers subject to a special system with its own rules, which differ from those applicable to Crown privilege.

[13] The Court in Bisaillon v. Keable summed the matter up by asserting that the application of informer privilege "does not depend on the judge's discretion, as it is a legal rule of public order by which the judge is bound" (p. 93).

[14] In summary, informer privilege is of such importance that it cannot be balanced against other interests. Once established, neither the police nor the court possesses discretion to abridge it.

[103] Charron J.A. finished her point with this (para. 63):

[63] Hence, in this case there was no need for input unless and until the applications judge decided that some of the material was not privileged. Trial counsel repeatedly made clear he was only seeking disclosure of any material that was not found by the applications judge to be privileged. No exception to the privilege exception was claimed in this case. Informer privilege is subject to only one exception, known as the “innocence at stake” exception, and when it is raised, the information must be reviewed whether its disclosure is necessary to prove the accused’s innocence: see R. v. Leipert at paras 20 and 33. However, no such issue arose in this case. The appellant through counsel fully participated in the proceeding to the extent that it was required to guard his interests.

[Emphasis added.]

[104] I do not read Pilotte as standing for the proposition that counsel for the defence should be permitted to be present at the first stage hearing in the case at bar. In my view, Pilotte’s message is that the right to full answer and defence must be modified by the informer privilege rule. In the end the court found that counsel in that case, absent from the private meeting between the judge and the Crown and police, “participated in the proceeding to the extent that was required” to guard the interests of the accused.

[105] Nor do I read Pilotte as standing for the proposition that s. 37 confers a discretion on a trial judge to permit the presence of counsel in a hearing where an informer’s identity will be disclosed. The discretion spoken of in Pilotte at para. 62 of those reasons is one that must be fashioned with the nature of the privilege asserted squarely in mind.

[106] Counsel for the respondents also relied on two decisions of this court, R. v. Fisk (1996), 108 C.C.C. (3d) 63, 77 B.C.A.C. 81 (“Fisk”), and R. v. Meuckon (1990), 57 C.C.C. (3d) 193, 78 C.R. (3d) 196 (“Meuckon”), for the proposition that a trial judge has a discretion to permit defence counsel to be present at this first stage of the informer privilege proceeding. In my view these cases do not support that proposition.

[107] In Fisk, Crown counsel chose to provide the accused’s counsel with confidential information. The issue in that case was not whether the accused’s counsel was entitled to the information but whether the trial judge was right in refusing to reveal the information to the accused, on trial for murder. This Court held that the trial judge was right in finding that the evidence did not fall into any exception to the rule that the identity of the informer should not be revealed to the accused. The case does not stand for the proposition that there was a discretion in the trial judge to order that the defence have the identity of the informer, he already had it.

[108] Nor does Meuckon assist the respondents. Meuckon did not involve informer privilege, but rather Crown privilege relating to the protection of police investigation methods. The question was whether the trial judge in a drug trial erred in refusing a line of cross-examination that would have exposed the investigation technique. The Court allowed the appeal on a different issue but in passing Mr. Justice Lambert, speaking for the Court, said that if an objection to the disclosure of evidence is made under s. 37 of the Canada Evidence Act, it is open to a trial judge to “hear or examine the information in circumstances which he considers appropriate, including the absence of the parties, their counsel and the public.” The respondents say that this statement recognizes that the type of hearing to be held and the presence or absence of counsel and their clients is within the discretion of the trial judge. I cannot agree. The issue of informer privilege and all of its ramifications was simply not being addressed in Meuckon. As noted in Pilotte, the type of hearing held will be determined by the nature of the privilege being asserted.

[109] 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.

[110] I agree then with the Crown that the trial judge erred in permitting defence counsel to be present for the inquiry into whether the Crown was required to claim informer privilege in this case. I would set aside the order of the trial judge.

[111] Before leaving this case I should note that one of the concerns of the trial judge was that she would not have full argument as to whether there was a confidential informer involved in this case. The trial judge said that the respondents’ counsel might assist in making that decision. To this end the trial judge might invite respondents’ counsel to submit legal arguments with respect to the test that she must apply in determining whether a person is a confidential informer and whether the informer may have waived the privilege. The respondents will not be privy to the facts led by the Crown, but it would be open to them to advise the trial judge of the legal points she might address in making her decision.

[112] If that course is impractical, rather than turn to respondents’ counsel, it would be open to the trial judge to seek the assistance of amicus curiae. In Named Person, Mr. Justice Bastarache addressed the issue in this way at para. 48:

[48] Of course, we must make allowances for the difficult position that the judge will be in, namely an in camera proceeding in which both parties - the alleged informer and the Attorney General - will often both be arguing in favour of the same conclusion. (Conceivably, of course, the Attorney General might dispute the individual's claim to informer privilege status.) If such a circumstance should arise, the non-adversarial nature of the proceedings at this stage may cause concern. Therefore, it may be permissible in some cases for a judge to appoint an amicus curiae in order to assist in the determination of whether or not the evidence supports the conclusion that the person is a confidential informer. However, the mandate of the amicus must be precise, and the role of the amicus must be limited to this factual task. The legal issues are of another nature. The judge alone makes the legal determination that a confidential informer is present, and that the informer privilege applies. Here, the amicus was asked what was the scope of the privilege. Moreover, given the importance of protecting the confidential informer's identity, if a trial judge decides that the assistance of an amicus is needed, caution must be taken to ensure that the amicus is provided with only that information which is absolutely essential to determining if the privilege applies. Given the mandate of the amicus in the present case, it appears that the appointment was inappropriate.

[113] Finally, while not necessary to my reasons, it bears noting the mischief that would be caused by the presence of defence counsel at a first stage hearing. First, and most obviously, what informer would be confident giving information to the police about someone he or she rightly fears knowing that the lawyer for that person can learn his identity? Second, the possession of such knowledge places defence counsel in the invidious position of being required to second guess all decisions he or she makes as to the course of the defence investigation – are his or her inquiries to some degree influenced by knowledge of the informer’s identity? If counsel decides to pursue an avenue of investigation based on his knowledge of the informer, will some aspect of that investigation inadvertently disclose the identity of the informer? Third, by accepting information that cannot be disclosed to his client, defence counsel puts at risk the confidence that the accused must have in his or her lawyer. Communications between the lawyer and the client can only be hampered by the burden of such secrecy.

[114] I should make it clear these reasons are addressed to only the first stage of the inquiry. If the trial judge decides that a confidential informer is not involved, then the blacked out evidence will be disclosed. If informer privilege does apply, then the trial judge can adopt a procedure, such as that developed in R. v. Garofoli, [1990] 2 S.C.R. 1421, 60 C.C.C. (3d) 161, that protects that privilege while at the same time ordering the maximum disclosure possible in the circumstances.

“The Honourable Madam Justice Ryan”