(delivered the judgment of the Court)
Everyone charged with a criminal offence in Canada is constitutionally entitled to full and timely disclosure of all relevant material under the control of the Crown. To withhold that material without justification is to jeopardize impermissibly the right of the accused to make full answer and defence. The entitlement to disclosure must therefore be broadly construed. But it is neither absolute nor unlimited.
The limit that concerns us here is a function of the “informer privilege”, which prohibits disclosure of the identity of confidential informants.
More particularly, we are required to decide whether the trial judge erred in permitting defence counsel to attend the in camera hearing sought by the Crown to establish its claim of informer privilege. With respect, I believe that she did.
The judge’s order was intended to safeguard the privilege by prohibiting defence counsel from disclosing to anyone, including the accused – their own clients – anything they learned at the hearing. In fact, however, the order exposed the privilege to imminent demise, since information tending to reveal the identity of the putative informer was bound to be revealed in the course of the hearing. Defence counsel would thus have been made privy to what the informer privilege is meant to deny them.
For the reasons of Ryan J.A., dissenting at the Court of Appeal, and for the reasons that follow, I would therefore allow the Crown’s appeal and return the case to the trial court for determination of the Crown’s claim of informer privilege in accordance with the procedure set out below.
The respondents are charged with corruption, fraud, and breach of trust in relation to the sale of B.C. Rail’s freight railway operations by the provincial government. The decision on appeal was one of a series of pre-trial orders arising out of a lengthy application for disclosure. In response to their requests, the accused received more than 100,000 documents, including police notes and reports that had been redacted. Some pages were completely blacked out.
Defence counsel applied to the court for “unredacted” copies. The Crown objected, claiming the informer privilege.
The trial judge, Bennett J. (as she then was), proposed that the Crown submit the documents in question under seal, accompanied by an affidavit explaining the basis upon which the privilege was claimed. The trial judge preferred to test the privilege on a paper record that could be edited to protect the privilege, while permitting counsel to respond to the claim.
The Crown contended that it could not properly establish its claim of privilege without approximately one hour of live testimony by a police officer. And the Crown insisted on an in camera and ex parte hearing for that purpose.
Defence counsel objected to the ex parte nature of the hearing and applied for permission to attend, without their clients. They agreed to submit to a court order and undertakings not to divulge any privileged information to anybody, including the accused. Counsel had obtained authorizations from their clients in this regard.
Bennett J., relying in part on R. v. Fisk (1996), 108 C.C.C. (3d) 63 (B.C.C.A.), held that so long as defence counsel were subject to the court order and undertakings, they could participate fully in the in camera hearing: 2007 BCSC 1888, 170 C.R.R. (2d) 260. Justice Bennett’s reasons were based both on the common law of privilege and s. 650 of the Criminal Code, R.S.C. 1985, c. C-46, which establishes an accused’s right to remain present at trial.
In the course of her reasons, Bennett J. noted that the Crown could invoke s. 37 of the Canada Evidence Act, R.S.C. 1985, c. C-5 (“CEA”), which provides for non-disclosure where a public interest – such as the informer privilege – is at stake. Importantly, the CEA provides the Crown with an immediate right of appeal of certain evidentiary orders.
Section 37(1) reads:
The Crown invoked s. 37 upon the release of the Justice Bennett’s reasons. The next day, Justice Bennett issued additional reasons, affirming that even under s. 37, defence counsel could attend the in camera hearing, subject to undertakings and a court order: 2007 BCSC 1898, 170 C.R.R. (2d) 275. The Crown immediately inscribed the appeal that concerns us here.
In the Court of Appeal (2008 BCCA 297, 59 C.R. (6th) 165), Finch C.J.B.C. held that the court lacked jurisdiction to hear the Crown’s appeal. In his view, Bennett J.’s decision did not amount to a “disclosure order” within the meaning of s. 37.1 of the CEA and was for that reason not subject to immediate appeal under that provision. In the alternative, Chief Justice Finch held that the procedure devised by the trial judge was permissible. Donald J.A. concurred on the latter ground only.
Ryan J.A. dissented. She found that the trial judge’s decision did indeed constitute a “disclosure order” subject to immediate appeal under the CEA. With regard to the substance of Bennett J.’s order, Justice Ryan concluded that the presence of defence counsel at the in camera hearing would result in a breach of the informer privilege.
In Justice Ryan’s view, the court order and undertakings not to disclose did not cure this breach. As the sole exception to the privilege – where innocence is at stake – was not engaged, defence counsel could not be permitted to attend the hearing.
The Crown now appeals, with leave, to this Court. And the accused, in their cross-appeal, submit that the Court of Appeal lacked jurisdiction to hear the Crown’s “interlocutory” appeal (Factum on Cross-Appeal of Mr. Virk, at para. 14). I shall first consider the jurisdictional issue and then turn to the merits of Justice Bennett’s order.
The Court has indeed held, as the appellant submits, that “all criminal appeals are statutory and that there should be no interlocutory appeals in criminal matters”: Mills v. The Queen,  1 S.C.R. 863, at p. 959. This is, of course, a criminal matter, but the appeal relates to an incidental and separate proceeding under s. 37 of the CEA and Parliament has expressly provided in ss. 37.1-37.2 of the CEA for an immediate appeal as of right to the court of appeal, and further appeals, with leave, to this Court.
This right of appeal is limited by the CEA, however, to a “determination under any of subsections 37(4.1) to (6)”. Section 37(6) is concerned with prohibition orders and has no application here. The jurisdiction of the Court of Appeal thus depended on whether the trial judge’s decision amounted to a determination under either s. 37(4.1) or s. 37(5).
Section 37(4.1) provides that a court “may authorize by order the disclosure of the information” over which privilege is claimed “[u]nless the court .... concludes that the disclosure .... would encroach upon a specific public interest”. Section 37(5) adds that even where a specified public interest is engaged, disclosure may nevertheless be ordered – subject to conditions – if the public’s interest in disclosure outweighs a specified public interest that militates against disclosure.
The “specified public interest” at issue in this case is the protection of the identity of informers, more generally known as the “informer privilege”. The informer privilege is a class privilege, subject only to the “innocence at stake” exception. It is not amenable to the sort of public interest balancing contemplated by s. 37(5): R. v. Leipert,  1 S.C.R. 281, at paras. 12-14. I shall have more to say later about the purpose and scope of the privilege.
When s. 37 is invoked to protect the informer privilege – a relatively rare occurrence, since the claim of privilege will usually be settled under the common law alone – its strictness is not relaxed. See R.W. Hubbard, S. Magotiaux and S.M. Duncan, The Law of Privilege in Canada (loose-leaf), at p. 3-44.
Recognizing the unique nature of the informer privilege, the trial judge found it unnecessary to engage in the “balancing” required under s. 37(5). She held instead that the substantive law on the scope of the privilege permitted defence counsel to attend the in camera hearing she had ordered.
In the language of s. 37(4.1), then, the trial judge concluded that in camera disclosure to defence counsel, subject to a court order and undertakings, did not encroach upon the “specified public interest” – that is, the informer privilege invoked by the Crown. In my view, this decision amounts to an order for disclosure – albeit extremely limited disclosure – under s. 37(4.1).
The respondents – appellants on the cross-appeal – raise two main arguments in support of the contrary conclusion that the trial judge’s decision was not an order of disclosure subject to immediate appeal.
First, they submit that the trial judge’s decision was not an order of disclosure, but only a “procedural ruling” (Factum of the Respondent U. S. Basi on Appeal and Cross-Appeal, at para. 37; Factum of the Respondent Virk on Cross-Appeal, at para. 39; Factum of the Respondent A. Basi on Appeal and Cross-Appeal, at para. 164.)
Second, even if the decision can be characterized as an order, respondents contend that it did not authorize disclosure, but merely prescribed a procedure to be followed in determining whether the informer privilege had been established. The respondents contend that the CEA does not contemplate immediate appeals of “procedural” decisions of this sort.
In my view, these arguments all fail: They favour form over substance and recast the judge’s order in an erroneous light.
The inevitable result of the trial judge’s decision was to require the Crown to reveal to defence counsel information over which the informer privilege had been claimed. As defence counsel are outside the “circle of privilege”, permitting them access to this information – even subject to court orders and undertakings – constitutes inevitable disclosure of the information. And while the trial judge sought to restrict this disclosure of privileged information to defence counsel, who were prohibited from sharing it with any one else, her decision constituted an order of disclosure nonetheless.
If there remained any doubt as to the nature of the trial judge’s decision, the trial judge settled it herself. The last sentence of her additional reasons reads [para. 23]:
The in camera hearing 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.
The trial judge could not have been more clear that she was making a determination that was properly subject to immediate appeal. There is no reason to conclude that the trial judge misunderstood the nature and consequences of her own order.
I would therefore dismiss the cross-appeal.
The decisive question on this appeal is whether defence counsel can be permitted to attend an in camera hearing to determine the existence of an informer privilege where, in the course of the hearing, information tending to reveal the identity of the putative informer is bound to be revealed.
Before turning to that issue, it will be helpful to consider generally the purpose, scope and operation of the informer privilege and the governing principles set out by Bastarache J. in Named Person v. Vancouver Sun, 2007 SCC 43,  3 S.C.R. 253.
The privilege arises where a police officer, in the course of an investigation, guarantees protection and confidentiality to a prospective informer in exchange for useful information that would otherwise be difficult or impossible to obtain. In appropriate circumstances, a bargain of this sort has long been accepted as an indispensable tool in the detection, prevention and prosecution of crime.
The informer privilege has been described as “nearly absolute”. As mentioned earlier, it is safeguarded by a protective veil that will be lifted by judicial order only when the innocence of the accused is demonstrably at stake. Moreover, while a court can adopt discretionary measures to protect the identity of the informer, the privilege itself is “a matter beyond the discretion of a trial judge.” (Named Person, at para. 19).
Whenever informer privilege is claimed, or the court of its own motion considers that the privilege appears to arise, its existence must be determined by the court in camera at a “first stage” hearing. Even the existence of the claim cannot be publicly disclosed. Ordinarily, only the putative informant and the Crown may appear before the judge. In Named Person, however, the Court considered that an amicus curiae may be necessary or appropriate, particularly where the interests of the informant and the Crown are aligned: Named Person, at para. 48.
In determining whether the privilege exists, the judge must be satisfied, on a balance of probabilities, that the individual concerned is indeed a confidential informant. And if the claim of privilege is established, the judge must give it full effect. As we have seen, Named Person established that trial judges have no discretion to do otherwise.
Finally, the informer privilege belongs jointly to the Crown and to the informant. Neither can waive it without the consent of the other.
Though Named Person held that “first stage” hearings must be held in camera, the Court was not called upon to consider whether the hearings must proceed ex parte as well. That is because the privilege was claimed in that case by the informant – the very person before the court on extradition proceedings. And he claimed the privilege not to keep the information out of the hands of any party to the proceedings, but rather to prevent media organizations from accessing information relating to his activities as a police informant. In those unusual circumstances, all of the parties to the proceeding had access to the privileged information; it was only third parties who were excluded.
Like Named Person, this case concerns a claim of informer privilege. Unlike Named Person, however, this case does not concern a fugitive-informant who seeks to prevent disclosure of information to which he is already privy. Rather, it concerns the accused, who seek to obtain disclosure of information which the Crown feels bound to deny them. But these distinctions, significant as they are, do not turn the tide in the respondents’ favour.
It is true, of course, that the respondents are in jeopardy of criminal conviction and its consequences. Their right to make full answer and defence guaranteed by s. 7 of the Canadian Charter of Rights and Freedoms is therefore plainly engaged: R. v. Stinchcombe,  3 S.C.R. 326. The Court has made clear, however, that the right to make full answer and defence does not alone trigger an exception to the informer privilege: Leipert, at paras. 23-25. It is only where innocence is at stake that the privilege yields and information tending to reveal the identity of the informant can be disclosed.
It thus remains as true in this case as it was in Named Person that “[w]hile the judge is determining whether the privilege applies, all caution must be taken on the assumption that it does apply” (para. 47). No one outside the circle of privilege may access information over which the privilege has been claimed until a judge has determined that the privilege does not exist or that an exception applies. It follows that the trial judge erred in permitting defence counsel to hear the testimony of an officer tending to reveal the identity of the putative informant at the “first stage” hearing.
To hold otherwise is to place defence counsel in an awkward and professionally undesirable position. The concern is not that defence counsel would intentionally violate their undertakings or the court order; rather, it is that respecting the undertakings and court order would, at best, strain the necessary relationship between defence counsel and their accused clients.
Defence counsel would have to remain constantly on guard never to say or do anything, even inadvertently, that might tend to reveal the informant’s identity. This exceedingly onerous constraint would by its very nature “prevent frankness and fetter the free flow of information between lawyer and client”, and otherwise impair the solicitor-client relationship: R. v. G,  EWCA Crim 1368,  2 Cr. App. R. 37 (p. 630), at pp. 634-35. In certain cases, defence counsel might feel bound to withdraw their representation, caught in a conflict between their duty to represent the best interests of their client and their duty to the court not to disclose or to act on the information heard in camera: R. v. G., at pp. 635-36.
It is true that defence counsel gave their undertakings of non-disclosure with the consent of their clients. At the time, however, the privileged information was otherwise inaccessible to both the accused and their counsel. Once the information is in the hands of their counsel, the consent freely given beforehand might understandably be viewed by the accused as consent given without choice. And consent thought to have been given without choice, even if not repudiated, is bound to be resented.
In support of the trial judge’s order, the respondents cite s. 650 of the Criminal Code, which codifies the accused’s right to be present at trial. Indeed, the trial judge’s first decision on the common law privilege claim rested, in part, on this provision: Section 650 was invoked by the judge in concluding that counsel should be permitted to attend subject to a court order and undertakings.
Section 650(1) reads:
Clearly, s. 650 has no application to the trial judge’s decision under s. 37. By its very terms, it applies only to the presence of the accused at trial. An application under s. 37 of the CEA is a discrete proceeding, separate from and only ancillary to the criminal trial. Accordingly, it is not caught by s. 650: R. v. Pilotte (2002), 156 O.A.C. 1, at para. 46.
This case concerns an application for disclosure only. The Crown does not seek to rely upon the redacted portions of the documents in order to prove guilt. Indeed, the Crown could not introduce the withheld information as evidence at trial without providing it to the defence. This is therefore not a case where the Crown seeks to use information against a person without permitting that person to see the information. Compare Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9,  1 S.C.R. 350.
Of course, withheld material over which the informer privilege is claimed might in some instances assist the defence, for example, by providing a trail to other relevant and helpful evidence, or in preparing and conducting the cross-examination of Crown witnesses. The withheld material might even be indicative of innocence, while still falling outside the narrow “innocence at stake” exception to the privilege. It is therefore essential that claims of privilege be resolved accurately and fairly, bearing in mind that ex parte proceedings raise serious procedural fairness concerns of particular significance in the conduct of criminal prosecutions, where the liberty of the accused is at stake.
Where a hearing is required to resolve a Crown claim of privilege, the accused and defence counsel should therefore be excluded from the proceedings only when the identity of the confidential informant cannot be otherwise protected. And, even then, only to the necessary extent. In determining whether the claim of privilege has been made out, trial judges should make every effort to avoid unnecessary complexity or delay, without compromising the ability of the accused to make full answer and defence.
Throughout, it should be remembered as well that the interest of accused persons in being present (or, at least, represented) at any proceeding relating to the charges they face remains a fundamental one, even where s. 650, by its very terms, has no application. An ex parte procedure is particularly troubling when the person excluded from the proceeding faces criminal conviction and its consequences.
In order to protect these interests of the accused, trial judges should adopt all reasonable measures to permit defence counsel to make meaningful submissions regarding what occurs in their absence. Trial judges have broad discretion to craft appropriate procedures in this regard.
Measures that a trial judge may wish to adopt in assessing a claim of informer privilege include inviting submissions on the scope of the privilege – including argument as to who constitutes a confidential informant entitled to the privilege – and its application in the circumstances of the case. Defence counsel may be invited as well to suggest questions to be put by the trial judge to any witness that will be called at the ex parte proceeding.
In appropriate cases, fairness may require the court to provide the defence with a redacted or summarized version of the evidence presented ex parte – edited to eliminate any possibility of disclosing the informant’s identity – so as to permit the trial judge to receive additional submissions from the defence on whether the privilege applies in the particular circumstance of the case. In particularly difficult cases, the trial judge may appoint an amicus curiae to attend the ex parte proceeding in order to provide assistance in assessing the claim of privilege.
In the present case, permitting defence counsel to make submissions and to propose questions to be put by the court to the witness at the ex parte hearing might well have been appropriate. The trial judge, however, will be in a better position to decide how best to craft safeguards that mitigate any potential unfairness arising from the ex parte nature of the proceedings. The adoption of appropriate initiatives is therefore best left to the trial judge.
For all of these reasons, I would allow the appeal, dismiss the cross-appeal, and return the case to the trial court to be proceeded with in accordance with the judgment of the Court in this case.
Named Person v. Vancouver Sun, 2007 SCC 43,  3 S.C.R. 252; R. v. Fisk (1996), 108 C.C.C. (3d) 63; Mills v. The Queen,  1 S.C.R. 863; R. v. Leipert,  1 S.C.R. 281; R. v. Stinchcombe,  3 S.C.R. 326; R. v. G,  EWCA Crim 1368,  2 Cr. App. R. 37 (p. 630); R. v. Pilotte (2002), 156 O.A.C. 1; Charkaoui v. Canada (Citizen and Immigration), 2007 SCC 9,  1 S.C.R. 350.
Canada Evidence Act, R.S.C. 1985, c. C-5: s.37, s.37.1, s.37.2.
Criminal Code, R.S.C. 1985, c. C-46: s.650
Authors and other references
Hubbard, Robert W., Susan Magotiaux and Suzanne M. Duncan. The Law of Privilege in Canada. Aurora, Ont.: Canada Law Book, 2006 (loose-leaf updated May 2009).
APPEAL from a judgment of the British Columbia Court of Appeal (Finch C.J.B.C. and Ryan and Donald JJ.A.), 2008 BCCA 297, 257 B.C.A.C. 253, 235 C.C.C. (3d) 383, 59 C.R. (6th) 165,  B.C.J. No. 1300 (QL), 2008 CarswellBC 1436, affirming a decision of Bennett J., 2007 BCSC 1898, 170 C.R.R. (2d) 275,  B.C.J. No. 2816 (QL), 2007 CarswellBC 3162. Appeal allowed and cross-appeal dismissed.
William Berardino, Q.C., Janet L. Winteringham, Q.C., Michael Sobkin and Andrea N. Mackay (m/s Hunter Litigation Chambers, Vancouver), for the appellant/respondent on cross-appeal.
P. Michael Bolton, Q.C., and Claire E. Hatcher (m/s Bolton & Muldoon, Vancouver), for the respondent/appellant on cross-appeal Udhe Singh Basi.
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