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When police officers are charged with crimes relating to their conduct during an investigation, can they, at their own discretion, disclose to their defence lawyers information they learned during that investigation that might reveal the identity of a confidential informer? By J.S. Patel, Criminal Lawyer, 403-585-1960

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Informer Identity, Supreme Court of Canada Decision from BC Appeal Courts
Informer Privilege, Innocence at Stake, Police Obligations

Pre-trial disclosure applications to secure information from confidential informants has been heavily considered by the Supreme Court of Canada in previous cases (i.e. Regina v. Barros, 2011 SCC 51).  This case, however,  involves an academically interesting question of criminal law.  It was eloquently framed in the following manner by the Supreme Court of Canada today in the Reginav. Brassington, 2018 SCC 37,  decision that was released by the Court:

When police officers are charged with crimes relating to their conduct during an investigation, can they, at their own discretion, disclose to their defence lawyers information they learned during that investigation that might reveal the identity of a confidential informer?

In very general terms, the the police informer privilege is the common law rule of evidence to the effect that a Crown witness suspected of being, or known to be, a police informer  cannot be questioned as to whether or not he is one.    Nor can another witness be asked questions which would disclose the identity of a police  informer : A.-G. v. Briant(1846), 15 M.&W. 169, 153 E.R. 808, 15 L.J. Ex. 265, cited in Reginav. Blain (1960), 33 C.R. 217 at 219, 127 C.C.C. 267 (Sask.C.A.), also cited in Solicitor-General of Canadav. Royal Commission Re Health Records(1981), 62 C.C.C. (2d) 193 at 219, 23 C.R.(3d) 338 (S.C.C.).

In this case, four (4) police officers were charged with crimes relating to alleged misconduct during a police investigation. This criminal matter arose from the “Surrey Six” investigation, a complex RCMP investigation into a gang-related homicide. According to the Crown, about eighty (80) confidential informers were involved in the investigation.

Prior to their trial, those police officer-defendants applied for a declaration that they could discuss information they learned during the investigation with their defence counsel that might reveal the identity of confidential informers. The assigned case management judge granted the application, declaring that the officers could discuss any information in their possession with counsel. The Crown and the RCMP then brought proceedings to determine whether the communications authorized under the declaratory order constituted “disclosures” within the meaning of s. 37  of the Canada Evidence Act . Pursuant to s. 37(1) of the Act, the Crown may object to disclosures on public interest grounds. Section 37.1 of the Act provides a special right of appeal from a determination of an objection. Sections 37  and 37.1  apply to criminal proceedings and other matters over which Parliament has jurisdiction. The case management judge found that she had jurisdiction to hear the Crown’s objection but dismissed it. The Court of Appeal dismissed an appeal from the rejection of the s. 37  objection. It characterized the order allowing disclosure as civil rather than criminal in nature, held that an appeal under s. 37.1  was unavailable and held that the Crown could not object to the declaratory order under s. 37 . The case management judge’s declaratory order and the Court of Appeal’s decision were appealed to the Court.

The Supreme Court of Canada granted the  Crown and order that the declaratory order should be set aside. An order should be granted pursuant to s. 37(6)  of the Canada Evidence Act  prohibiting the officers from disclosing informer‑privileged information to their counsel, subject to a successful innocence at stake application. The SCC ruled that the  case management judge had jurisdiction to hear the Crown’s objection to the declaratory order under s. 37  of the Canada Evidence Act  and an appeal to the Court of Appeal under s. 37.1 was therefore proper. The declaratory order was criminal in nature and therefore within Parliament’s constitutional authority. In determining whether an order is civil or criminal in nature, what is relevant is not the formal title or styling of the order, but its substance and purpose. Here, the order related to the accused’s claim that declaratory relief was necessary to help them make full answer and defence in ongoing criminal proceedings, and it was issued by a criminal case management judge in connection with the rights of the parties in a pending criminal proceeding, regarding what might be done by the accused in conducting their defence. The fact that it was declaratory does not change its essential character.

Furthermore, s. 37 was the proper route for challenging the order, as it authorized a form of disclosure to which the Crown was entitled to object on public interest grounds. The interconnected purposes of ss. 37  and 37.1  are to give the Crown the ability to object to disclosures on public interest grounds, and to grant an interlocutory right of appeal where it is unsuccessful. They provide a valuable tool for the Crown to protect against disclosure of confidential and privileged information, and reflect the fact that the Crown’s ability to object to disclosures on public interest grounds was not meant to be restricted to those circumstances where the disclosure is compulsory and will occur in open court. Disclosures may be equally harmful to the public interest whether they are made in or outside of court, and whether they are made under compulsion or voluntarily.

The Supreme Court of Canada ruled in this case that the officers are not entitled to disclose the informer‑privileged information to their lawyers. This is because the current jurisprudence prevents piercing informer privilege unless the accused can show that his or her innocence is at stake. As such, there is no basis for departing from that rule when the accused is a police officer. Informer privilege arises in circumstances where police receive information under a promise of confidentiality. Informers are entitled to rely on that promise. What is more, the informer privilege rule is a common law rule of long standing and it is fundamentally important to the criminal justice system. Subject to the innocence at stake exception, the privilege acts as a complete bar on the disclosure of the informer’s identity, and the police, the Crown and the courts are bound to uphold it.  In order to pierce informer privilege — the innocence at stake test — is, accordingly, onerous; and that privilege should be infringed only where core issues going to the guilt of the accused are involved and there is a genuine risk of a wrongful conviction. In this case, the defence counsel or their the officers (defedants) in this case did not argue that any privileged information in their possession meets the innocence at stake test. Nor did they suggest any information relating to confidential informers was genuinely relevant to their defence.

Furthermore, as previously confirmed by the Supreme Court of Canada, defence counsel are outside the circle of informer privilege, that is, the group of people who are entitled to access information covered by informer privilege. In all cases where informer privilege applies, disclosure outside the circle requires a showing of innocence at stake. Limitations placed on what the police officers can say to their lawyers do not create conflicting legal and professional duties; rather, they align with the officers’ professional duties and allow their lawyers to proceed without fear of inadvertently revealing the privileged information their clients possess. The law may require officers to exercise some degree of caution with respect to what they disclose, but that expectation does not meaningfully interfere with their relationship with counsel. The primary purpose of the right to free solicitor‑client communication in a criminal proceeding is to permit the accused and counsel to discuss issues that go to full answer and defence — “solicitor‑client communication” does not have some independent, intrinsic value over and above its relationship to full answer and defence. Like any other criminal defendant, if it becomes clear that the police officers are at genuine risk of conviction, and that this information needs to be disclosed, they can bring a Regina. v.McClure, [2001] 1 S.C.R. 445 . application. The application in this case was not brought under the ordinary McClure process, nor was it adjudicated under McClureprinciples. Instead, the accused sought a pre-trial remedy of declaratory relief, relating not to the scope of privilege, but rather to who is entitled to access information that everyone agrees is within the scope.   In such cases, Access to the information will be given only where an accused demonstrates “innocence at stake”,as explained later in these reasons.

Police officers are, when accused of crimes, entitled to expect that they will be treated no less fairly than others who are accused and given the full protection of the law. What they are not entitled to expect is that they will be treated better. There is no reason to advantage police officers who, by virtue of their positions of trust, have information that has been confided to them for safekeeping. It is not their information to exploit for personal juridical gain.

Mr. J.S. Patel is a criminal defence lawyer that assumes conduct of all criminal trial and appeal matters.  If you have been charged with a criminal offence, please feel free to call 403-585-1960 for a free initial consultation.

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An evidentiary assessment, from the case-law, of the motives of complainants to lie in historical sexual assault cases, and a disbelief of accused’s evidence

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Motive to Fabricate

While the assessment of credibility in a context of a sexual assault is driven by general principles, there are deeper legal principles, surrounding the rules of evidence that govern its application.   In Regina v. A.S., 2017 ONCA 994, the Ontario Court of Appeal ordered a new trial for historical sexual offences allegedly committed by a pediatrician against two (2) of his former patients. The allegations spanned a period between 1964 and 2013. He was acquitted of charges against four (4) other complainants at trial. There is a publication ban on the nature of the facts.  The factual findings are related in the decision of the Court of Appeal.  This case is helpful in that is reinforces the Appellate Court’s views on the assessment of credibility when consider a motive to lie and the Crown’s failure to corroborate evidence in the context of historical sexual assault cases, where witness memories are typically spent.

Court of Appeal’s Decision in A.S.

The Court of Appeal found that the Trial Court’s misapprehensions of evidence and unsupported conclusions, taken together, meant the convictions could not stand. In summary, trial court had held that an absence of a complainant’s motive to lie enhanced her credibility. In citing Regina v. L. (L.)(2009), 96 O.R. (3d) 412 (C.A.), 2009 ONCA 413 (CanLII), at para. 44, the Court of Appeal held that “There are simply too many reasons why a person might not tell the truth, most of which will be unknown except to the person her/himself, to use it as a foundation to enhance the witness’ credibility” (at para. 25).  Of note, is the Court’s comments that certainly the absence of any apparent motive to lie is an unreliable marker of credibility.  Consequently, it is generally an unhelpful factor in assessing credibility  The trial court also erred by drawing an inference of guilt from her disbelief of the accused’s evidence and by attributing a motive to him, to visit the complainant, that was based on a misapprehension of the evidence. In addition, the trial court also rejected defence submissions about the importance of the absence of corroboration.  It stated: “None is required. Given the way the alleged crimes were committed where the only persons present were doctor and patient, the potential for corroboration does not arise.” The Court of Appeal found that while the trial judge is correct that corroboration is not necessary in such cases, the trial court was not correct that the alleged crimes were committed where the only persons present were doctor and patient. On the complainant’s own version of events, a nurse walked in during the most serious of the assaults she described. There were other areas of potential corroboration as well, such as records confirming contact between the appellant and complainant. that never materialized. The trial court inaccurately dispensed with the potential for corroboration, presenting the risk that she may not have given sufficient consideration to the undeniable fact that the complainant’s allegations stood alone.
 

The above noted information is not intended as legal advice.  If you have been charged with a historical sexual assault offence, call Mr. J.S. Patel, Barrister at 403-585-1960 for a consultation.