R. v. Dougan Date:, 2013 BCPC 319

Citation: R. v. Dougan Date: 20131115 2013 BCPC 0319 File No: 94069-1 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ABRAHAM JOHN NORMAN DOUGAN REASONS FOR JUDGMENT ON PRE-TRIAL APPLICATION OF THE HONOURABLE JUDGE S.D. FRAME Counsel for the Crown: Ms. Jessica Lawn and Mr. Simon Charles Counsel for the Accused: Mr. Kevin Church Place of Hearing: Kamloops , B.C. Date of Hearing: November 4, 2013

Date of Judgment: November 15, 2013 [ 1 ] This is Mr. Dougan’s application for disclosure of certain documents which are set out in Appendix “A” to these Reasons for Judgment. I am grateful to counsel for their thorough arguments both written and oral. I borrow from all of them in my Reasons. [ 2 ] The allegation is that Mr.

Dougan shot a Dall sheep in the Yukon Territory without permit and transported it unlawfully to British Columbia contrary to the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act ; the Yukon Wildlife Act ; the Yukon Wildlife Act Regulations ; and the British Columbia Wildlife Act . The offence is alleged to have occurred between August 17, 1999 and August 24, 1999.

This application for disclosure is brought in advance of the trial scheduled to commence on December 3, 2013. [ 3 ] The Crown concedes that the disclosures sought at numbers 4, 5 and 8 are likely relevant and have now been disclosed as of the date of this application. Since Mr. Church has not had the opportunity to review that disclosure prior to the commencement of the application, and given the Crown’s concession of its likely relevance, I am making an order for disclosure of the following:

a) The disclosure and production of a date noted in an email contained in the disclosure materials of Bryce Miller, from Chris Gustafson to Bryce Miller dated December 14, 2011 at 1:03 p.m., as well as the original query from Bryce Miller to Chris Gustafson by email dated December 14, 2011 at 12:14 p.m.;

b) The disclosure and production of a date noted in an email contained in the disclosure materials of Bryce Miller from Bryce Miller to Owen Hargrove dated Thursday, December 15, 11:09-52 2011, Subject Ministers Certificates;

c) The disclosure and production of any records or notes from interviews with Abraham Dougan or Dan Stacey as it relates to this matter. [ 4 ] With respect to #9, Mr. Church seeks on behalf of Mr. Dougan disclosure and production of information relating to the source of the original photograph of Mr. Dougan which was enlarged, the exact process by which the photograph of Mr. Dougan was enlarged and the process by which the enlarged photograph of Mr. Dougan was used in the field during the investigation.

The Crown says that this information is likely relevant and has been complied with by way of a supplemental Will Say Statement of Gerry Perrier which was disclosed on October 23, 2013. Mr. Church said that what has been disclosed is a photocopy of a page of a book that was blown up and recopied. [ 5 ] The photograph, he argued, is the crux of the case. It is alleged that his client harvested the Dall sheep in the Yukon Territory and his client says the Dall sheep was harvested in British Columbia in accordance with his permit.

The photograph was apparently used to establish, according to the Crown, where the Dall sheep was harvested. As a consequence, the photograph and its providence are vital to disclosure. It is expected that the Defence may call an expert on photogrammetry. This disclosure is essential to that expert opinion. [ 6 ] The Crown says that there is no need to obtain an affidavit or a statutory declaration because Mr. Perrier is testifying. However, this will certainly not afford an opportunity for Mr. Church to instruct the expert in advance of the trial.

The Crown also says that this request is likely relevant and has been complied with by way of a supplemental Will Say Statement of Mr. Perrier which was disclosed on October 23, 2013. I am satisfied that it is essential to disclosure and preparation of the Defence for Mr. Dougan to have the specifics of the origins of the photograph used by Mr. Perrier. I order disclosure of that information. [ 7 ] In the meantime, the Crown is working to prepare a s. 30 affidavit to be tendered by Byron Mason, who is the record keeper for Boone and Crockett.

Boone and Crockett is the record keeper for animals harvested in British Columbia. There is a photograph on file with this record keeper. The s. 30 affidavit will show where all the information came from. I expect that s. 30 affidavit will provide the requisite disclosure for Mr. Church and make no further order in that regard. Mr. Dougan is at liberty to apply again if the affidavit does not meet these disclosure parameters. [ 8 ] The Crown concedes that #10 is likely relevant and has made requests to Conservation Officer Van Damme.

The Crown expects to disclose promptly any relevant notes of the conservation officer from 1999 to 2003 in a Will Say Statement. An update has already been provided to Mr. Dougan on October 23, 2013. This disclosure is expected to be made by November 8, 2013, along with a Will Say Statement indicating whether and when the conservation officer had any dealings with Mr. Dougan, and any other relevant information. I therefore make an order for disclosure of the following: 1) The disclosure and production of the notes of Conservation Office Kevin Van Damme as it relates to Mr.

Dougan from 1999 to the present. [ 9 ] Similarly, with respect to #7, the Crown has requested the notes of John Russell, who provided the direction to Chris Gustafson to commence the investigation. He appears to be the genesis of the investigation and his notes are clearly relevant. The Crown concedes that Mr. Russell’s notes are relevant. Upon receiving his material they intend to review it for relevance and whether informer privilege applies. The Crown will disclose all relevant materials except where informer privilege applies.

I order the disclosure of all the relevant materials subject to my decision regarding confidential informer privilege. [ 10 ] The issue of informer privilege brings me to items 1, 2, 3 and 6. Much of the material provided to Mr. Dougan has been redacted. The Crown maintains that it and possibly some of the information in Mr. Russell’s notes are protected by confidential informer status. The redacted materials may tend to identify the informer and therefore the Crown objects to disclosure of same. The Crown argued that the only portion of the materials relevant to Mr.

Dougan’s ability to make full answer and defence is the date of the tip, which has been provided. Mr. Church argued that the court should review the documents in camera to determine whether the material is relevant and, if relevant, whether it ought to be disclosed. He argued that confidential informer privilege does not apply because there is no evidence in the materials disclosed to show that the informer sought confidentiality.

[11] The Crown concedes its duty to disclose all material in its possession that is not clearly irrelevant or privileged. The Crownrecognizes as well that this duty is very broad including any information that may be inculpatory, exculpatory or useful to the accused’sability to make full answer and defence. Thus, the Crown recognizes that it is expected to err on the side of caution by disclosingeverything in possession of the investigative agency unless it is clearly irrelevant or subject to a legal privilege. [12] The Crown argued it is Mr.

Dougan’s burden to prove the materials are relevant to his guilt or innocence of the charges. Itmaintains that nothing in the tip is to be relied upon by the Crown to advance the charges before the court. Consequently, the nature ofthe tip and any motive for making the tip are not relevant. The tip is only the event which led to the commencement of theinvestigation. [13] On this application, the Crown asserted that the tip was received from a known but confidential source. That source maintainedthat Mr.

Dougan illegally harvested a Dall sheep in Yukon Territory and illegally reported the harvest to be in British Columbia. Thatharvest was published in at least two record books as being the second largest Dall sheep harvested in British Columbia. There arephotographs and narratives submitted by Mr. Dougan in those records, which formed part of the investigation. The method for provingthe kill site has been disclosed. The Crown will not be relying at trial on any of the information provided in the tip and will leadevidence only of the subsequent investigation. [14] Mr.

Church argued that the disclosure sought in numbers 1, 2, 3, 6 and possibly some of 7 are relevant to establish motive formaking the tip, the date of making the tip with respect to the limitation defence, and the providence of the photographs not only used inthe investigation but also derived from the published photographs, Mr. Perrier’s field experience and the computer mapping systems. [15] The Crown rightly argued that the motivation behind the making of the tip is not relevant to the proceedings.

Whether theperson was motivated by malice, jealousy or purely altruistic reasons, the tip is no different than a 911 call, a Crime Stoppers tip or anyother report to an authority which precipitates an investigation. However, if I understand Mr. Church correctly, the allegation is that thetip directed the investigators to a specific location in the Yukon to the exclusion of the consideration of any location in BritishColumbia. If that is the case, then this disclosure may well be relevant to the defence and the case as a whole. It may well go not onlyto Mr.

Dougan’s guilt or innocence but may well also put his innocence at stake. [16] On the issue of the limitation defence, the Crown argued that it is a technical defence and not one which goes to the guilt orinnocence of the accused. Consequently, the disclosure by the Crown of the date of the tip is sufficient disclosure for those purposes.

Ifthe information sought was only for the purposes of establishing commencement of the limitation defence, then I agree with Crown thatthe date is sufficient disclosure. [17] The Crown argued that even if the material is relevant, the disclosure cannot be made because it is protected by informerprivilege. The Crown correctly argued that the duty to disclose relevant materials remain subject to the law of privilege as set out in R. v.Stinchcombe, (SCC), [1991] 3 S.C.R. 326 (p. 8) and R. v. Leipert, (SCC), [1997] 1 S.C.R. 281 (para.9).

Informer privilege takes precedence over the right of the accused to disclosure, subject only to the innocence at stake exception. The Crown argued that innocence at stake cannot be made on these facts and cannot be determined on a pre-trial application. [18] The Crown argued that informers play an important

part in regulatory schemes where much relies on honesty and self-reporting. It is argued that the stakes are high both for the public and for informers whose safety is placed at risk by disclosure ofinformation that may tend to identify them. There is no evidence before me that this informer sought confidentiality or that his or hersafety is placed at risk if the informer’s identity and sources are disclosed. I do not mean to say that the Crown must establish there is arisk, but only to address the argument made by Crown. [19] Mr.

Church argued that simply because a person is an informer does not mean they are a confidential informer entitled to theprivileged. In R. v. Kaboni, [2010] O.N.C.J. 91, the court held that it was for the Crown to establish on a balance of probabilities thatthe information is subject to confidential informant privilege.

The court said this at paragraphs 17 and 18: 17 It may be possible for the Crown to have an informant clothed with confidential informant privilege in the absence of a guaranteeof anonymity in exchange for information – even where, as in this case, the informant was a material witness to the offence. But theremust be reasonable grounds to believe that a retrospective finding that the informant should be granted confidential informant statuswould be in the interests of the administration of justice. In the present case there is no factual basis for such grounds.

The onlyexplanation offered by the Crown for invoking confidential informant privilege is that the caller lives in the same small community asthe accused. In that respect, this case is not unlike many other criminal prosecutions where witnesses would prefer to remainanonymous. But the exigencies of criminal justice do not usually permit the Crown to offer such assurances to witnesses. Absent areasonable basis to believe that the informant may be at risk, it is only where the witness does not have evidence deemed relevant to theprosecution that the Crown could even consider giving assurances of anonymity.

In situations like the present, where there is noevidence that the interests of justice would be served by granting a material witness status as a confidential informant, it would be unfair,unreasonable and contrary to the principles of justice to permit the agents of the State to retrospectively offer the witness assurances ofanonymity which have the effect of unilaterally declaring that witness “off limits” for the defence. 18 For the purposes of this proceeding, I am not satisfied that the Crown has established on a balance of probabilities that theinformation received in the 911 call is subject to confidential informant privilege.

The general rule that the Crown is obliged to discloseall evidence which may be material to an issue in the case is not displaced. The Crown is, therefore, directed to disclose the uneditedtape and transcript of the 911 call to the defence forthwith. On the basis of the arguments made on this motion, I hesitate to couple thedisclosure order with a threatened stay of proceedings or make an order of costs. However, it should be understood that my hesitation isrooted in my expectation that disclosure will be made.

In the event that my expectation is misplaced and the Crown continues with theprosecution without completing its disclosure obligations as directed, it is open to the defence to bring an application before me forappropriate relief, which may include a stay of proceedings and costs.

[20] As in Kaboni, there is no factual basis before me that granting the tipster confidential informer status is in the interest of theadministration of justice. The court suggests in Kaboni that the Crown must also establish a reasonable basis to believe the informantmay be at risk. It seems that test goes too far. I am satisfied that the Crown must show only that confidentiality was sought in exchangefor the tip, and that confidentiality was promised – so long as none of the evidence obtainable only through the tip is led at trial. [21] Further, in R. v.

Basi, 2009 SCC 52 , [2009] 3 R.C.S. 389, the Supreme Court of Canada said this about informantprivilege: 36 The privilege arises where a police officer, in the course of an investigation, guarantees protection and confidentiality to aprospective informer in exchange for useful information that would otherwise be difficult or impossible to obtain. In appropriatecircumstances, a bargain of this sort has long been accepted as an indispensable tool in the detection, prevention and prosecution ofcrime. 37 The informer privilege has been described as "nearly absolute".

As mentioned earlier, it is safeguarded by a protective veil that willbe lifted by judicial order only when the innocence of the accused is demonstrably at stake. Moreover, while a court can adoptdiscretionary 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). 38 Whenever informer privilege is claimed, or the court of its own motion considers that the privilege appears to arise, its existencemust 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 consideredthat 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. 39 In determining whether the privilege exists, the judge must be satisfied, on a balance of probabilities, that the individual concernedis indeed a confidential informant. And if the claim of privilege is established, the judge must give it full effect.

As we have seen, NamedPerson established that trial judges have no discretion to do otherwise. [22] Mr. Church argued that none of the material disclosed by the Crown, apart from an assertion that confidentiality was soughtand given show on a balance of probabilities that the informer provided the tip on the promise of confidentiality. The proper procedurerequires that an in camera hearing determine whether that person is in fact a confidential informant.

Such a hearing may not benecessary in circumstances where the Crown provides sufficient material to the accused to satisfy him that the test would be met on abalance of probabilities. That being said, the process for such a hearing is set out at paragraphs 52 to 56 of R. v. Basi, supra: 52 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.

Thewithheld material might even be indicative of innocence, while still falling outside the narrow "innocence at stake" exception to theprivilege.

It is therefore essential that claims of privilege be resolved accurately and fairly, bearing in mind that ex parte proceedingsraise serious procedural fairness concerns of particular significance in the conduct of criminal prosecutions, where the liberty of theaccused is at stake. 53 Where a hearing is required to resolve a Crown claim of privilege, the accused and defence counsel should therefore be excludedfrom the proceedings only when the identity of the confidential informant cannot be otherwise protected. And, even then, only to thenecessary extent.

In determining whether the claim of privilege has been made out, trial judges should make every effort to avoidunnecessary complexity or delay, without compromising the ability of the accused to make full answer and defence. 54 Throughout, it should be remembered as well that the interest of accused persons in being present (or, at least, represented) at anyproceeding relating to the charges they face remains a fundamental [page405] one, even where s. 650, by its very terms, has noapplication.

An ex parte procedure is particularly troubling when the person excluded from the proceeding faces criminal conviction andits consequences. 55 In order to protect these interests of the accused, trial judges should adopt all reasonable measures to permit defence counsel tomake meaningful submissions regarding what occurs in their absence.

Trial judges have broad discretion to craft appropriate proceduresin this regard. 56 Measures that a trial judge may wish to adopt in assessing a claim of informer privilege include inviting submissions on the scopeof the privilege -- including argument as to who constitutes a confidential informant entitled to the privilege -- and its application in thecircumstances of the case.

Defence counsel may be invited as well to suggest questions to be put by the trial judge to any witness thatwill be called at the ex parte proceeding. [23] If I am satisfied the tipster is a confidential informer, then informer privilege is an absolute bar to disclosure of the informer’sidentify and any information that tends to reveal that identity, subject only to innocence at stake. Absent that exception, there is nodiscretion in the court to order the disclosure. It is not a case of balancing the importance of the privilege against the right to make fullanswer and defence as set out in R. v.

Leipert, supra, at paragraphs 12 to 14, 18 and 20: 12 Informer privilege is of such importance that once found, courts are not entitled to balance the benefit enuring from the privilegeagainst 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, thisCourt contrasted informer privilege with Crown privilege in this regard.

In Crown privilege, the judge may review the information andin 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, thelaw gives the Minister, and the Court after him, no power of weighing or evaluating various aspects of the public interest which are inconflict, since it has already resolved the conflict itself.

It has decided once and for all, subject to the law being changed, that informationregarding 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 differfrom 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 onthe 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, neitherthe police nor the court possesses discretion to abridge it. . . . 18 Informer privilege prevents not only disclosure of the name of the informant, but of any information which might implicitly revealhis or her identity. Courts have acknowledged that the smallest details may be sufficient to reveal identity. In R. v.

Garofoli, (SCC), [1990] 2 S.C.R. 1421, at p. 1460, Sopinka J. suggested that trial judges, when editing a wiretap packet, consider: . . . whether the identities of confidential police informants, and consequently their lives and safety, may be compromised, bearing inmind that such disclosure may occur as much by reference to the nature of the information supplied by the confidential source as by thepublication of his or her name; This principle was also confirmed by the British Columbia Court of Appeal in R. v.

Hardy (1994), (BC CA), 45B.C.A.C. 146, at p. 149: It is well recognized that information which might identify a confidential informant need not be disclosed to the Justice of the Peace or attrial. Similarly, McEachern C.J.B.C. in the case at bar suggested (at para. 35) that an "accused may know that only some very small circle ofpersons, perhaps only one, may know an apparently innocuous fact that is mentioned in the document". He noted: "The privilege is ahallowed one, and it should be respected scrupulously". 20 Informer privilege is subject only to one exception, known as the "innocence at stake" exception.

Lord Esher, M.R., described thisexception in Marks v. Beyfus (1890), 25 Q.B.D. 494 (C.A.), at p. 498: . . . if upon the trial of a prisoner the judge should be of opinion that the disclosure of the name of the informant is necessary or right inorder to shew the prisoner's innocence, then one public policy is in conflict with another public policy, and that which says that aninnocent man is not to be condemned when his innocence can be proved is the policy that must prevail. In Bisaillon v.

Keable, supra, this Court held (at p. 93): The rule is subject to only one exception, imposed by the need to demonstrate the innocence of an accused person. As Cory J. stated in Scott, supra, at pp. 995-96: In our system the right of an individual accused to establish his or her innocence by raising a reasonable doubt as to guilt has alwaysremained paramount. [24] It may not be possible or realistic to determine which seemingly innocuous details could lead to the identity of an informer asdemonstrated in R. v.

Omar, 2007 ONCA 117 , 2007 O.N.C.A. 117: 18 Detective Heaney testified as to fifteen categories of information that would serve to identify an informer: (1) age; (2) gender; (3)occupation; (4) socio-economic status; (5) health-related issues; (6) lifestyle choices; (7) associates; (8) connection with the arrest ofother persons; (9) dates, times, locations, and the fact of contact with the police as an accused, victim, or witness; (10) criminalconvictions, discharges, acquittals, and withdrawals; (11) any indication that the informer is or has been bound by a recognizance,undertaking, probation order, or prohibition order or is or has been on parole; (12) geographical areas frequented; (13) length of time inthe community; (14) length of time as an informer; and (15) motivation for providing information.

[25] These were accepted as appropriate examples. The list is not exhaustive. [26] No such information has been provided to me by the Crown on this pre-trial application. Continuing on, the court said: 40 In my view, in the circumstance of this case, the trial judge erred by concluding that her edited version of the documents wouldnot tend to identify the informer. The informer had provided the police with very detailed information about where the respondentwould be found, what he would be wearing, the very car he would be driving, and the precise location in the car where a gun would befound.

The pool of people who would be privy to that precise and detailed information must necessarily be very small. The individualsin that pool are likely known to the respondent. Even the slightest piece of information about the informer gleaned from the police filescould serve to eliminate some members of the pool or identify the informer. This point was made in Detective Heaney’s testimony andhas been recognized in the case law on informer’s privilege. . . . 42 Other courts have recognized that even the smallest details may provide an accused person with all he or she needs to identify theinformer: see R. v.

Garofoli (1990), (SCC), 60 C.C.C. (3d) 161 at 194 (S.C.C.); R. v. Parmar (1987), (ON SC), 34 C.C.C. (3d) 260 at 281 (Ont. H.C.J.). In Leipert, supra, McLachlin J. quoted a portion of the passage from McEachernC.J.B.C.'s reasons quoted above and observed at para 16 that "[a] detail as innocuous as the time of the telephone call may be sufficientto permit identification.

In such circumstances, courts must exercise great care not to unwittingly deprive informers of the privilegewhich the law accords to them." 43 I do not agree with the suggestion that because Leipert dealt with anonymous informers it has limited application to the facts of thiscase. An anonymous informer could be anyone. Given the precise details given to the police by the informer in the present case, the poolof potential informers is very limited. In my view, this called for heightened caution when it came to editing.

Leipert does not eliminatethe possibility of editing, but holds, at para. 32, that where it is impossible to determine which details of the information provided by an informer will or will not result in that person's identitybeing revealed, then none of those details should be disclosed, unless there is a basis to conclude that the innocence at stake exceptionapplies. [27] The test for establishing whether innocence is at stake is set out in R. v. McClure, 2001 SCC 14 , [2001] 1 S.C.R. 445.

The accused must first satisfy the trial judge that the information sought is necessary to raise a reasonable doubt as to innocence. Theremust be more than speculation or wishful thinking that the material may assist. The material must be likely to raise a reasonable doubt. It must go to establishing factual innocence. It is not sufficient that the material may impugn the credibility of a Crown witness or showthat the evidence was obtained unconstitutionally.

If this stage of the test is met, the privileged material is produced to the trial judge forreview. [28] The Crown asserts that the tip was provided to the Enforcement and Compliance Branch of the Yukon Environment on thepromise of confidentiality. Therefore, it and any identifying materials related to the tip are subject to informer privilege. Mr. Churchargued nothing in the Crown disclosure indicates confidentiality was sought or given. [29] The Crown argues that none of the material sought by Mr. Dougan will address the question of whether Mr.

Dougan illegallyharvested the Dall sheep in the Yukon and illegally reported it as having been killed in British Columbia. However, the providence ofthe photograph and whether other sites were reviewed may well both go to not only proof beyond a reasonable doubt but perhaps eveninnocence at stake. [30] In any event, the Crown argued that pre-trial is not the appropriate time to determine whether or not the innocence at stakeexception has been engaged. The Crown argued that innocence at stake can only be determined at or near the conclusion of the trialproceedings. It is a test of last resort as set out in R. v.

Brown, 2002 SCC 32 , [2002] 2 S.C.R. 185 at paras. 4, 46, 47, 51 and 52: 4 The McClure test comprises a threshold question and a two-stage innocence at stake test, which proceed as follows: . . . If the threshold has been satisfied, the judge should proceed to the innocence at stake test, which has two stages. Stage #1: The accused seeking production of the solicitor-client communication has to demonstrate an evidentiary basis to conclude thata communication exists that could raise a reasonable doubt as to his guilt.

Stage #2: If such an evidentiary basis exists, the trial judge should examine the communication to determine whether, in fact, it is likelyto raise a reasonable doubt as to the guilt of the accused. It is important to distinguish that the burden in the second stage of the innocence at stake test (likely to raise a reasonable doubt) isstricter than that in the first stage (could raise a reasonable doubt).

If the innocence at stake test is satisfied, the judge should order disclosure of the communications that are likely to raise a reasonabledoubt, in accordance with the guiding principles discussed infra. . . . 46 This second element of the threshold test raises significant procedural issues, particularly regarding the proper timing of a McClureapplication.

These issues obviously troubled the motions judge (at paras. 12-13): It is of course indisputable that if the accused can raise a reasonable doubt without access to the solicitor-client file, then his or herinnocence would not be at stake, and access to the file would be unnecessary. But how is a trial judge to assess whether or not theaccused can raise a reasonable doubt in the minds of the jurors, without usurping the jury's function? Perhaps the matter should be leftuntil the Crown's case is complete, so that the judge would be better able to assess the extent of the accuser's [sic] jeopardy.

But theimplications for the orderly conduct of the trial, and the avoidance of undue delay and disruption for the jurors should such a course befollowed need hardly be mentioned. Moreover, even at the end of the Crown's case, the judge is not in a position to meaningfully predictthe outcome of the trial. In the end, I conclude that what Major J. was imposing on trial judges was simply an obligation to consider whether there is, in theparticular circumstances of the case, a genuine danger of wrongful conviction.

On the basis of the evidence before me, I can onlyconclude that in this case, there is. 47 With respect, Dambrot J. erred in reaching his conclusion on this issue. The test established in McClure was intended to carefullyscreen requests for access to solicitor-client communications and to allow such access only when the accused has shown that he has noother defence and that the requested communications would make a positive difference in the strength of the defence case.

As [page207]acknowledged in McClure, the solicitor-client privilege is fundamental to Canada's justice system and will yield only in rarecircumstances. . . . 51 The learned motions judge's premature decision highlights the problems that may arise with respect to the timing of a McClureapplication. Although the trial judge has discretion in every case as to when to hear the McClure application, it may be helpful todevelop some guidance on this issue [page209] to avoid premature McClure applications and/or orders.

(2) Timing of McClure Application 52 In the usual case, it would be preferable to delay the McClure application until the end of the Crown's case. This will better permitthe trial judge to assess the strength of the Crown's case against the accused, and to determine whether the accused's innocence is, infact, at stake. If the Crown has failed to prove its case beyond a reasonable doubt, then there will be no need to allow the McClureapplication and invade a third party's solicitor-client privilege. This will prevent the privilege from being unnecessarily violated. [31] This is the same test applied in R. v.

Ly, 2004 BCCA 173 , 2004 B.C.C.A. 173, at paragraph 15: 15 As courts have consistently indicated, the informer privilege is a very important principle of law. This type of privilege will only befound to be abrogated in cases where the innocence at stake exception is demonstrated to exist. In order to make such a determination,the court will need to be fully apprised of all of the facts and circumstances of the individual case. That normally could only occur at astage in the trial where the substantial body of trial evidence is before the court.

At that point counsel and the court will be able toaddress the issue in an informed manner. As I have endeavoured to show above, in the circumstances of the present case there was nosufficient factual underpinning to allow this issue to be properly argued by counsel or considered by any judicial officer. [32] The process in this case then must be that the Crown claim informer privilege over the redacted material and any furthermaterial not yet reviewed which may fall within that same area of concern. The Crown must then disclose to Mr. Dougan sufficientmaterial to satisfy the test set out in Basi, supra.

I am not satisfied otherwise that the Crown has established on a balance of probabilitiesthat the information sought is subject to confidential informer privilege. The threshold is necessarily low. However, some evidencemust be given that confidentiality was sought and given in exchange for the tip. [33] If Mr. Dougan remains unsatisfied that this is sufficient to establish the tipster as a confidential informant, then there must be anex-parte hearing for me to determine the tipster’s status.

If I am satisfied that the tipster is a confidential informant, then this applicationfor production must be adjourned to the trial until such time as it becomes appropriate to argue that Mr. Dougan’s innocence is at stake. [34] I adjourn the application with respect to #1, 2, 3, 6 and any parts of 7 over which the Crown claims informer privilege to thetrial. Both parties have leave to apply pre-trial or at trial for a hearing to determine whether the informer is a confidential informer.

Inthe absence of such an application, the application for disclosure will remain outstanding until a sufficient body of evidence is before the

court to determine whether the disclosure ought to be made. ___________________________ S.D. Frame Provincial Court Judge