R v Barros: The Supreme Court of Canada Narrows Informer Privilege
Informers who cooperate with the police in the investigation of drug-related crimes often face grave danger once they become known as “rats” by their criminal associates. The law of informer privilege is a sacrosanct protection designed to guard the identity of informers to protect them from retribution and, in doing so, encourage informers to cooperate with the police. The police, the Crown, and the courts are bound to protect the identity of informer. In a criminal proceeding, informer privilege can only be pierced by the “innocence at stake” exception: where the informer disclosure is necessary to establish the innocence of the accused.
While informer privilege is a near-absolute privilege that overrides the Crown’s duty of disclosure to the defence, does the scope of protection extend to preclude a defence investigation into the identity of the informer? This is the central issue in R v Barros,  3 SCR 368, where the Supreme Court of Canada (“SCC”) held that the defence in a criminal proceeding is not bound by informer privilege, and the right to make full answer and defence is fundamental to criminal justice and is protected by s. 7 of the Charter.
The identity of an informer is at the heart of this appeal. Based on the informer’s tip, Sergeant Brezinski of the Edmonton Police Service obtained and executed a search warrant at Qureshi’s home where cocaine and handguns were seized; as a result, drug trafficking and firearms offences were laid against Qureshi and others. Qureshi’s lawyer hired Barros, a retired 25-year veteran of the Edmonton Police Service who is now in business as a private investigator, to identify the informer.
During Barros’ investigation, he asked Qureshi’s associates to give him their cell phone numbers, and if they refused they would be subjected to polygraph examinations. Barros obtained their cell phone records to see if any of the associates had engaged in telephone calls with Sergeant Brezinski.
Later, Barros met with Sergeant Brezinski at a golf course and told him he had discovered the informer’s identity and that he had not exposed it to Qureshi’s lawyer “at this time.” Barros never explicitly asked Sergeant Brezinski to withdraw the charges against Qureshi, but Sergeant Brezinski perceived that Barros would expose the informant’s identity if the charges against Qureshi were not withdrawn.
Barros was charged with obstruction of justice for wilfully taking investigative steps to identify a confidential informer for the purpose of interfering with criminal proceedings against Qureshi, contrary to s. 139(2) of the Criminal Code, RSC, 1985, c C-45 [Criminal Code]. He was also charged with two counts of extortion under s. 346(1.1) of the Criminal Code for inducing Sergeant Brezinski to withdraw charges against Qureshi and asking Qureshi’s associates to provide their cellular phone numbers.
The Main Arguments
The Crown contended that Barros used threats or other unlawful means to discover the identity of the informer, and exploited this information as a bargaining chip to force the Crown to withdraw the charges against Qureshi.
Barros argued that informer privilege is not a bar to the accused’s right to make full answer and defence. He claimed that it is illogical to prohibit the defence from investigating about the informer because the innocence at stake exception requires the defence to produce evidence about the source in order to lead the Court to conclude that further disclosure is required to protect the innocent. In other words, if investigating about the confidential police source were a criminal act, there could be no innocence at stake exception.
A motion for directed verdict of acquittal is made when the Crown’s evidence, even if believed, is insufficient to establish the elements of the offence so that the accused must be acquitted. The trial judge found that Barros was entitled to investigate the informant’s identity. The trial judge also held that attempts to fetter such a defence investigation would violate the accused’s right to a full answer and defence as guaranteed by s. 7 of the Charter. Because there was no evidence against Barros that, if believed, would establish intent to obstruct justice, the trial judge directed a verdict of acquittal on the obstruction of justice charge.
The trial judge also acquitted Barros on both counts of extortion charges. With respect to the first extortion charge, the trial judge held that there was no threat on Barros’ part to reveal the identity of the informant to anyone, and that the Crown has failed to prove beyond a reasonable doubt that Barros threatened Sergeant Brezinski. The trial judge also acquitted Barros on the second extortion charge because the testimony of Qureshi’s associate (Mirza Kassam) was unreliable as it was full of leading questions and invited hearsay.
The Alberta Court of Appeal decision was a 2-1 split. The majority disagreed with the trial judge’s reasoning on all three counts of charges, while the dissent agreed with the trial judge decision in its entirety. The majority held that informer privilege prohibits the accused or anyone on his behalf from making efforts to discover the informer’s identity. The majority believed that, without a reasonable justification or excuse, investigating the identity of an informer prima facie amounts to obstruction of justice.
With respect to the extortion charges, the majority concluded that the trial judge misapprehended the evidence. The possibility of retribution against the informer by Qureshi constituted threatened harm, and Kassam’s testimony revealed that he thought of “dying” if he did not give Barros his phone number, which was not merely a “social pressure” as described by the trial judge.
Obstruction of Justice
Justice Binnie, penning the majority decision of the SCC, cautioned against extending the scope of informer privilege beyond what is necessary to achieve its purpose of protecting informers and encouraging informers to come forward. Because informer privilege can significantly restrict the ability of an accused to make full answer and defence, extending the privilege to prohibit investigation into informers’ identities simply “goes too far.” Justice Binnie further stated that, as long as the methods used are lawful, the defence is entitled to poke holes in the prosecution’s case. If the informer turned out to be non-existent, unreliable, or had participated in entrapment, discovering the informer’s identity may legitimately play a role in making out a full defence.
However, the defence investigation “must proceed in a responsible manner with due regard to the potential of obstructing justice.” While it was lawful for Barros to investigate, it was pursued by unlawful means or for an unlawful purpose. Justice Binnie held that the trial judge erred in characterizing Barros’ conduct as mere “preparation” instead of considering the entire chain of events. He concluded that, when the evidence is taken as a whole, if believed, it demonstrated an intent to obstruct unlawfully the trial against Qureshi. Thus, a new trial was ordered.
Extortion to Withdraw Charges against Qureshi
Justice Binnie found that the trial judge erred in applying the legal analysis on extortion. Even though Barros did not explicitly threaten the police to drop the charges against Qureshi, the law does not require the accused to act without subtlety. A veiled reference may constitute a threat if the recipient comprehended it as a threat of injury. The question is, as a matter of law, what would a reasonable person in the position of Sergeant Brezinski understand? Sergeant Brezinski testified that he understood that his refusal to drop the charges would put the informer’s identity at risk. Therefore, the trial judge erred in concluding that indirect suggestions by Barros were not capable, as a matter of law, of satisfying the threats element of extortion. A new trial was ordered.
Extortion to Obtain Telephone Numbers
The dispute between the Crown and the accused on the second extortion charge was whether Barros tried to obtain the phone numbers of Qureshi’s associates by “threats.” The only evidence available was the testimony given by Mirza Kassam, which was disbelieved by the trial judge. Therefore, there was no factual foundation that could found a conviction. Justice Binnie held that, albeit the trial judge’s flawed legal analysis on extortion, the Crown is not entitled to a retrial that had no impact on the outcome of the case. Thus, the verdict of acquittal rendered by the trial judge should stand.
Unlike other rules of evidence designed to obtain truth and fairness, informer privilege is largely driven by the policy reason that the protection of identity of informer is more important than the pursuit of truth. Courts should be cautious not to deprive informers of the privilege that the law accords to them. However, the SCC here explicitly allows the defence to fully investigate into the sources of the information obtained by the police. At first glance, this decision seems to weaken the promise of protecting informer’s identity, putting the already precarious informer at greater risk of danger. However, extending a duty of non-disclosure to the defence would unfairly constrain an accused’s right to fully prepare his or her case, contrary to s. 7 of the Charter, and potentially result in wrongful conviction. Occasionally, the information provided by the tipster is questionable because the informer is not under oath, not subject to cross-examination, and the judge and jury cannot observe the demeanour of the informer at trial to assess his or her credibility. Because the judiciary is institutionally incapable of probing the case and must rely on the facts put forward by the parties, the defence investigation becomes an important way to supply meaningful scrutiny to a claim based on information offered by an informer. The SCC is right to conclude that informer privilege does not foreclose lawful investigation by the defence to ascertain whether the informer is in fact a fabricated source, an agent of the state, or a material witness of the crime, which is not protected by informer privilege.