R v Basi: (I) The Sanctity of Informer Privilege; (II) Preliminary Appeals in Criminal Trials
The Sanctity of Informer Privilege
“Informer Privilege” or “Informant Privilege” – the protection of the identity of a confidential informant—is one of the most prohibitive and absolute privileges in the Canadian legal system. The Supreme Court of Canada reiterated its importance last week by unanimously overturning both lower court decisions in R v Basi,  3 SCR 389 [Basi].
Writing for the Supreme Court of Canada, Justice Fish noted:
The informer privilege has been described as ‘nearly absolute.’ … [I]t 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 (at para 37 [citation omitted]).
Informer privilege is considered such an important societal interest that it cannot be balanced against any other interests relating to the administration of justice. Informer privilege does not cede to the accused’s right to full disclosure, which, according to R v Stinchcombe,  3 SCR 326, is a constitutionally protected right under section 7 of the Charter. The privilege is subject only to the very narrow “innocence at stake” exception, which engages s.11(d) of the Charter, and operates only when the accused can establish that the information is necessary to demonstrate his or her innocence (i.e. the accused is unable to otherwise raise a reasonable doubt about his or her guilt) (see: R v Leipert,  1 SCR 281 [Leipert]).
The societal interests in protecting informer identity are (i) the effective operation of law enforcement:
The 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 (Bisaillon v Keable,  2 SCR 60, 106)
and (ii) protection of informants, with a recognition that aiding law enforcement is the duty of all citizens:
[Informant privilege] 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 (Leipert, para 9).
Factual Background and Judicial History
The Basi saga is infamously known as the “British Columbia Rail Corruption Case.” Three former public servants stood accused of fraud, breach of trust, and money laundering over allegations that they had received bribes in exchange for providing confidential information to one of the bidders competing in the first phase of the British Columbia Rail privatization. An in-depth factual background and detailed analysis of the British Columbia Court of Appeal and trial decisions was provided last year on TheCourt.ca: “Informer Privilege Hearings: Unfairly Non-Adversarial or Appropriately Restrictive?”.
The informer privilege issue in Basi arose as a result of the Crown disclosing a redacted version of police notes to the defence. Upon further application for disclosure, the Crown claimed informer privilege over the redacted portions of the documents, claiming that disclosing the information would compromise the identity of a police informant. The Crown also applied for an ex parte in-camera hearing so that the trial judge could consider informer privilege in the absence of the accused parties or their counsel (R v Basi, Virk and Basi, 2007 BCSC 1898, paras 2-6). The Crown claimed that “the presence of defence counsel [at the in-camera hearing] … will violate that informer privilege and identify the informant” (R v Virk, Basi and Basi, 2008 BCCA 297, para 3).
At trial, Madam Justice Bennett disagreed with the Crown and said that the in-camera hearing would occur with defence counsel present. To protect the informer privilege, she required written undertakings from defence counsel, and further bound counsel to a court order stating that they “will not disclose anything heard in the in-camera hearing to anyone … . Failure to comply with this order will result in a contempt of court hearing” (para 22). The British Columbia Court of Appeal dismissed the appeal on the grounds that it had no jurisdiction to hear it (discussed further below). Alternatively, the majority of the Court of Appeal would have found that allowing the defence counsel to attend the in-camera hearing would be within the rightful discretion of the trial judge. In a strong dissent, Madam Justice Ryan stated that “the trial judge erred in permitting defence counsel to be present for the inquiry” (para 110).
The Supreme Court of Canada Judgment
The Supreme Court of Canada unanimously overturned both lower courts, holding 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” (para 44). Building on the dissent of Madam Justice Ryan at the Court of Appeal, Justice Fish noted the awkward and professionally questionable position the defence counsel would be placed in if they were privy to the identity of the informer but were prohibited from revealing it to their clients. Such a situation would “strain the necessary [solicitor-client] relationship” (para 45). The Court’s decision makes it clear that the counsel for the accused in a criminal trial are not within “the circle of privilege” where informer privilege is at stake.
The Court then went on to address section 650(1) of the Criminal Code, RSC 1985, c C-46, raised by the defence at trial. Section 650(1) states:
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. [emphasis added]
Justice Fish held that the in-camera hearing to determine informant privilege did not constitute a part of the “trial” but was only an ancillary and discrete proceeding, thereby not engaging section 650(1).
However, after robustly “laying down the law” on informer privilege, Justice Fish went on to recognize the complexities inherent in the case at bar and outlined opportunities for the defence team’s involvement to ensure a fair and accurate resolution. He clarified that defence counsel ought to be barred from such hearings only where “the identity of the confidential informant cannot be otherwise protected” (para 53). I find this aspect of the decision to be blurry at best. The protection of an informant’s identity involves ensuring that even the most innocuous information that could lead to identification is privileged. It would be difficult for a trial judge to foresee and determine beforehand whether such information will be exposed during, for example, an interview with the police officer who knows the identity of the informant.
Justice Fish’s other proposals, such as inviting written submissions from defence counsel that could be entertained during the hearing, or providing the defence with a redacted transcript of the hearing after the fact, seem much more reasonable in ensuring the accused’s interests are not undermined. In his conclusion, Justice Fish left it open to the trial court to determine on a case-by-case basis what the best course of action would be in a given trial: “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” (para 58).
The Right to Preliminary Appeals in Criminal Cases and s.11(b) of the Charter
A second issue in this case was whether the Crown had a right to appeal the trial decision regarding informant privilege. The issue is, of course, a preliminary matter in an ongoing criminal trial. Can such a decision be appealed (effectively putting on hold the criminal proceeding while the procedural issue is determined)? Under paragraph 37.1(1)(b) of the Canada Evidence Act, RSC 1985, c C-5, “An appeal lies from a determination under any of subsections 37(4.1) to (6) 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.” Section 37 deals with the Crown invoking public interest privilege and subsections (4.1) to (6) deal with the trial court’s discretion in determining the privilege.
The trial judge clearly indicated in her decision that the Crown had the right to appeal her decision, and suspended the voir dire 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” (para 23). The majority of the Court of Appeal found this to be erroneous, holding that it had no jurisdiction to entertain the appeal because the trial judge’s decision was a disclosure order rather than a ruling under subsections 37(4.1) to (6). The Supreme Court of Canada overturned the Court of Appeal on the matter, dismissing the defence’s cross-appeal and finding that the trial judge’s decision was an order under section 37(4.1) and, therefore, open to appeal. The Court held that although the section 37 public interest privilege is much more relaxed and subject to balancing than informer privilege, this distinction is not determinative of whether the trial judge’s decision engaged section 37. By arguing that the trial judge’s decision was procedural in nature rather than amounting to a section 37 disclosure order, the defence was “favour[ing] form over substance and recast[ing] the judge’s order in an erroneous light” (para 29).
The defence in this case has already brought an application for a stay of proceedings against the accused due to unreasonable delay (under s.11(b) of the Charter). The defence is probably going to argue section 11(b) from a number of different angles. In my opinion, a large part of the delay would be considered reasonable given the fact that documentary disclosure and discovery involves hundreds of thousands of documents and that the defence itself requires a lot more time to review the discovery and prepare its case. However, the two years of appeals and cross-appeals arising from the informer privilege issue (the trial decision was issued on December 7, 2007 and the Supreme Court of Canada finally resolved the appeals on November 19, 2009) will probably be central to the determination of prejudice due to unreasonable delay.
My preliminary research indicates that appellate courts have upheld the right to a mid-trial appeal under section 37 of the Canada Evidence Act (see: R v Omar, 2007 ONCA 117; R v Pilotte,  156 OAC 1). However, the constitutionality of the provision itself has never been challenged. If the appeal process under section 37 is upheld then it effectively undermines any argument of unreasonable delay since the appeal process going all the way up to the Supreme Court of Canada is reasonably expected to take years. Another important issue in the section 11(b) analysis will be whether the Crown has been purposely stonewalling the disclosure process, as claimed by the defence, and whether the Crown can discharge its burden of justifying the delay (see R v Askov,  2 SCR 1199).