R. v. Chaudhry and Sekhon Date:, 2015 BCPC 424

Citation: R. v. Chaudhry and Sekhon Date: 20151007 2015 BCPC 0424 File No: 201697-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ZEMAAN CHAUDHRY ALVINDER SINGH SEKHON RULING ON APPLICATION OF THE HONOURABLE JUDGE D.R. GARDNER Counsel for the Crown: O. Bick, R. Carrier Counsel for the Defendant: N. Cobb, E. Lewis for Z. Chaudhry Counsel for the Defendant: J. Desbarats, T. Martin (Articled Student) for A. Sekhon Place of Hearing: Surrey , B.C.

Date of Hearing: October 5, 2015 Date of Judgment: October 7, 2015 [ 1 ] THE COURT : This is an oral decision of the court and I apologize in advance if I ramble at times, but I have not had a lot of time to write this judgment. As Mark Twain once apologized to a friend that he had written to, "Please excuse the length of this letter, I don't have enough time to be brief." [ 2 ] This is an application for further disclosure, if I can characterize it that way, by the defence. The accused and Mr.

Sekhon, the co-accused, are charged jointly on nine of the ten counts on the indictment, including allegations of trafficking and possession of firearms. The charges, everyone agrees, are very serious. [ 3 ] The applicant, that being counsel for Mr. Chaudhry, seeks an order for disclosure of two classes of materials; firstly the applicant seeks disclosure of what will be referred to as the foundation materials pertaining to information from confidential sources, including handlers' notes, source debriefing reports, and any other materials pertaining to source information in the context of the investigation.

The second class of materials involves an application for disclosure of materials that have been shared by a partner agency, in this case the Victoria Police, and which may be of assistance to the defence. [ 4 ] Counsel will no doubt notice that I am engaging in judicial plagiarism. By that I mean the written submissions of the applicant are extremely well-written and frankly, I cannot say it any better. [ 5 ] The Crown has supposedly refused disclosure of the first class of materials asserting a blanket claim of privilege.

Disclosure of the second class of materials is refused on the basis of relevance. [ 6 ] Counsel for Mr. Chaudhry submits that classes of material are relevant in the sense mandated by the authorities on disclosure, namely they may be of assistance to the defence and are not plainly irrelevant.

With respect to the claim of privilege, assuming it can be properly established, the applicant says there are still relevant materials that can be disclosed, redacted as necessary to protect privilege. [ 7 ] An overview of the law is that with respect to an accused person’s right to disclosure of police-amassed investigative material was in some state of confusion, until a series of decisions from the Supreme Court of Canada, dating back to the 1990s.

In the first of those cases, the historical aspect of the issue from a criminal justice system perspective was explained, thus, the Crown's obligation to disclose occurs when: The circumstances which give rise to this case are testimony to the fact that the law with respect to the duty of the Crown to disclose is not settled. A number of cases have addressed some aspects of the subject. Counsel has referred the court to a number of cases, including Cunliffe v. Law Society of British Columbia . I will not be reading citations into the record; they are duly noted in the written submissions.

No case in this Court has made a comprehensive examination of the subject. [ 8 ] Counsel has referred to the Law Reform Commission of Canada, in a 1974 working paper titled Criminal Procedure: Discovery , and a 1984 report titled Disclosure by the Prosecution , which: . . . recommended comprehensive schemes regulating disclosure by the Crown but no legislative action has been taken implementing the proposals. Apart from the limited legislative response contained in s. 603 of the Criminal Code . . . legislators have been content to leave the development of the law in this area to the courts.

Production and discovery were foreign to the adversary process of adjudication in its earlier history when the element of surprise was one of the accepted weapons in the arsenal of the adversaries [argues counsel]. This applied to both criminal and civil proceedings. Significantly, in civil proceedings, this aspect of the adversary process has long since disappeared, and full discovery of documents and oral examination of parties and even witnesses are familiar features of the practice.

This change resulted from acceptance of the principle that justice was better served when the element of surprise was eliminated from the trial and the parties were prepared to address issues on the basis of complete information of the case to be met. Surprisingly, in criminal cases in which the liberty of the subject is usually at stake, this aspect of the adversary system has lingered on.

While the prosecution [is generally cooperative] in making disclosure on a voluntary basis, there has been considerable resistance to the enactment of comprehensive rules which would make the practice mandatory. [ 9 ] The Supreme Court of Canada in Stinchcombe went on to outline a broad, indeed, sweeping duty on Crown counsel to disclose in a timely manner anything and everything that a police investigation engendered by way of evidentiary material unless it was plainly irrelevant or privileged. Recently, Mr. Justice Sopinka said in a unanimous Supreme Court decision: The

interpretation of s. 258(1)(

d) must be approached keeping in mind the accused's right to make full answer and defence. It must be interpreted, where reasonably possible, in accordance with the principle underlying this Court's decision in R. v. Stinchcombe . . . The 1991 decision of that court states: . . . that the Crown has a duty to disclose to the accused all information reasonably capable of affecting the accused's ability to make full answer and defence, and to do so early enough to leave the accused adequate time to take any steps he or she is expected to take that affect or may affect such right.

This obligation has constitutional underpinnings deriving from s. 7 of the Canadian Charter of Rights and Freedoms which reflect the overriding concern that failure to disclose impedes the ability of the accused to make full answer and defence.

[ 10 ] It is argued by the defence that relevance means there is a reasonable possibility the information in possession of the Crown is useful to the accused in making full answer and defence. For the purposes of disclosure, relevance does not mean unequivocally relevant. If the information is of some use, then it is relevant and must be disclosed. [ 11 ] Stinchcombe also authorizes the trial judge to review undisclosed material withheld by the Crown for the purpose of determining possible relevance.

If “the defence establishes a basis in accordance with its obligation [the court says], the Crown must then justify a continuing refusal to disclose.” As such, the onus of justifying refusal of disclosure is on the Crown, which is reviewable by the trial judge. [ 12 ] A trial judge on a review should be guided by the general principle that information ought not to be withheld if there is a reasonable possibility that the withholding of information will impair the right of the accused to make full answer and defence, unless the non-disclosure is justified by the law of privilege. [ 13 ] It has been argued on behalf of the defence what exactly constitutes an informer.

In the case of R. v. Basi , a 2009 decision of the Supreme Court of British Columbia, privilege arises, the court states, ... 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. [ 14 ] In R. v. Barros, the Supreme Court recognized that a “claim to informer status is always open to challenge by the defence.” It was further recognized that not everybody who provides information to the police thereby becomes an informant in law.

The Court acknowledged unfounded claims of privilege have been made. It was further acknowledged, police have claimed informer status “in manifestly inappropriate circumstances”, referring to the case of R. v. McCormack . In that case, the lead investigator admitted to promising confidential informant status to informants he had then sent to act as agents. Two of the informants had waived privilege, and another had been found not to be entitled to confidential status.

The Court went on to explain that agents and the material witness play an active role in criminal investigations that goes beyond simply providing information to the police. Binnie J. stated: No protection is afforded to a "source" whose conduct goes beyond the provision of information and acts as an " agent provocateur " or is otherwise a material witness to the crime. Both the agent provocateur and the material witness play an active role in criminal investigations and proceedings that goes beyond "tipping" the police.

Once a police informer goes into the "field" and acts as a police agent, the informer privilege is no longer applicable to prevent disclosure of his or her identity in respect of the events in which he or she acted as an agent . . . This does not mean, of course, that the informer loses protection in other cases where he or she has not stepped out of the protected role. [ 15 ] In R. v.

Basi, a procedure was suggested by the Supreme Court that at a hearing to resolve a Crown claim of privilege, the defence should 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. It has been said that trial judges are in a better position to decide how best to craft safeguards that mitigate any potential unfairness arising from the ex parte proceedings. [ 16 ] In relation to first stage hearings, the court determines the Crown’s claim of informer privilege in camera at a first stage hearing.

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. Various submissions are made as to the procedure, which I will get back to. [ 17 ] In the case at bar, it is argued by the defence that paragraph 16 of the Information to Obtain, the search warrant refers to an investigation undertaken by the Federal Serious and Organized Crime

Section in Victoria, targeting a man named Derek Sihota, who was said to have an association to Chaudhry. I need to correct what I said earlier about the Victoria Police. The proper name is the one I just referred to. It is clear, informer information was being gathered on Sihota and his associates. The Victoria investigation commenced on April 18th of 2013. The investigation of the two accused before the court commenced on May 21st of 2015. [ 18 ] It is argued that it is clear that on May 27th of 2015, Cst. Jasmins, Cst. Hiar and Cpl. Loeppky travel to Victoria to discuss their investigation.

It is also submitted that it is clear that the units share information with each other. Cpl. Loeppky specifically notes that “their [Victoria] affiant will begin to write for stash @66 but will provide info/ (not legible) to Cst. Hiar so he can begin to write as well." Further, Cpl. Loeppky notes that “they gave us copies of their docs…” and they will review the Victoria organizational chart. [ 19 ] Cst. Jasmins' notes evidence a concerted cooperative effort among the units, it is submitted, where they discuss putting a tracking device on the Jeep, and it is agreed that the CFSEU “we will write that warrant”.

Victoria continues to provide information and support to the investigation by forwarding source information to the affiant. It is also clear, it is submitted, that the police received and relied upon source information and debriefing reports in the preparation of the Information to Obtain and the investigation, generally. [ 20 ] The defence suggests that it is unknown whether the Crown has made any attempt to review the informant handler’s reports or notes to determine what portions may be disclosed.

At a minimum, it is submitted that any notes and debriefing reports that form the foundation for the unredacted materials pertaining to the confidential human source must be disclosed. The defence has also argued, in the course of oral argument, that it is not enough for the Crown to simply give an answer that "It's not relevant." [ 21 ] I have been referred to 21 cases. Counsel will be relieved to know, I am not going to refer to all 21 of them, but the ones that I find most useful for our purposes include, R. v.

Leipert , a 1997 decision of the Supreme Court of Canada in which the police received a tip from a Crime Stoppers Association that the accused was growing marihuana in his basement. A police officer went to the accused's house, accompanied by a dog, on four different occasions. The officer and the sniffer dog walked the street in front of the residence, and each time, the dog indicated the presence of drugs in the house. On one occasion, the officer smelled the aroma of marihuana coming from the house. He also observed that the basement windows were covered, and that one window was barred shut.

On the basis of these observations, the officer obtained a search warrant. The Crown refused disclosure on the ground of informer privilege. The trial judge viewed the document, and attempted to edit out all references to the identity of the informer, he then ordered disclosure. The Crown asked to rely on the warrant without reference to the tip. That request was refused because the accused did not consent. The Crown

ceased to tender evidence at that point, the defence elected to call evidence and the matter resulted in an acquittal. But the Court of Appeal reversed the trial judge's decision and ordered a new trial. At paragraph 11 the court states that: . . . the identity of the informer is known to the police. However, in cases like the instant one, the identity of the informer is unknown to everyone including the Crime Stoppers’ agent who received the call.

The court went on to say at paragraph 16 that: The fact that the privilege also belongs to the informer raises special concerns in the case of anonymous informants, like those who provide telephone tips to Crime Stoppers. Since the informer whom the privilege is designed to protect and his or her circumstances are unknown, it is often difficult to predict with certainty what information might allow the accused to identify the informer. A detail as innocuous as the time of the telephone call may be sufficient to permit identification.

In such circumstances, courts must exercise great care not to unwittingly deprive informers of the privilege which the law accords to them. The court went on to discuss judicial editing. At paragraph 28 the court says: The ultimate issue on this appeal is whether the trial judge erred in editing the tip sheet to remove references to the informer’s identity and in ordering the edited sheet disclosed to the appellant. Goes on to say: The scope of the rule extends not only to the name of the informer, but to any details which might reveal the informer’s identity.

It is virtually impossible for the court to know what details may reveal the identity of an anonymous informer. The same considerations apply on challenges to search warrants or wiretap authorizations. These considerations suggest that anonymous tip sheets should not be edited with a view to disclosing them to the defence unless the accused can bring himself within the innocence at stake exception. To do so runs the risk that the court will deprive the informer of the privilege which belongs to him or her absolutely, subject only to the “innocence at stake” exception.

It also undermines the [efficiency] of programs such as Crime Stoppers, which depend on guarantees of anonymity to those who volunteer information on crimes. The appellant relies on judicial editing of confidential material approved [of] in challenges to wiretap authorizations. Goes on to say: These cases are distinguishable from the case at bar on two grounds. First, the informants in those cases were not anonymous, enabling the court to make judgments on what details might or might not reveal the identity of the informers.

Second, the defence was seeking to review the affidavit or “Information to Obtain” filed in support of the application for the authorization, as distinguished from background documents and information. In the case at bar, the appellant had disclosure of the “Information to Obtain”. He knew the entire basis for the authorization. He wanted more -- the details of the information given by the tipster. Those details, recorded by the police officer who received the call, were contained in a separate document.

Paragraph 32 the court states: There may be cases where the informer and his circumstances are known, in which the court can be certain that what remains of an informant document after editing will not reveal the informer’s identity. When, however, as in the case at bar, it is impossible to determine which details of the information provided by an informer will or will not result in that person’s identity being revealed, then none of those details should be disclosed, unless there is a basis to conclude that the innocence at stake exception applies.

So in that case, the tests were set out and ultimately the court decided that the appellant had not brought himself within the innocence at stake exception. [ 22 ] I have also been referred to a couple of very helpful cases on this issue, first of all, the decision of His Honour Judge MacKenzie of the B.C. Supreme Court in the decision of R. v. McKay which was decided earlier this year. In that case, the accused was charged on an indictment with one count of possession of cocaine for the purpose of trafficking, which resulted from a police search of a residence pursuant to a warrant obtained earlier that day.

The constable who swore the Information to Obtain a search warrant relied partly on information received from two confidential informants. Mr. McKay challenged the validity of the search warrant and the admissibility of the evidence seized under it. In connection with that challenge, he applied for disclosure of materials relating to information obtained from the confidential informants referenced in the Information to Obtain and he sought

a) source handler notes,

b) source debriefing reports,

c) notes made by Cst. Lee in anticipation of obtaining the warrant, and

d) all notes and reports made by Cst. Lee after having conversation with the informant's handlers. [ 23 ] In the Information to Obtain, Cst. Lee alleged that Mr. McKay was involved in a dial-a-dope trafficking operation and on the strength of that information, he applied for the warrant, not only of the residence but of an automobile apparently registered to the accused. It should be noted that in paragraph 18 Mr.

Justice MacKenzie said he: . . .accept[ed], without hesitation, the importance of confidential information in combating criminal activity and the necessity to protect confidential informants from being identified. It was learned during that hearing that source handlers' document information obtained from an informant in a source debriefing report, and in his affidavit, Sgt.

Hollingsworth stated that the source handler uses source handler notes as the basis for a source debriefing report, but dilutes and reduces the information to its most generic form in order to protect the identity of the informant, which entailed the removal of details and specifics.

As a result: . . . [the police agencies] exert strict control over the dissemination of informant-related materials. Even police officers enjoy only limited access to [these documents]. The sergeant who testified before the court stated that the source document reports are: . . . not intended to be relied upon “as primary sources of information in support of any police action.” Moreover, where a requesting officer wishes to rely on “any” information obtained from an informant, permission must first be obtained from the source handler. He also stated that: . . .

RCMP [source debriefing reports] are not even distributed within the police community because of the risk of revealing the identity of confidential informants. Therefore, a further dilution of [the] SDR information, called a dissemination report, will be prepared and used for this purpose. [Those] reports contain “only the specific information ... required for a particular law enforcement purpose.” Justice MacKenzie quotes from the decision of R. v.

Bernath where: [The accused] brought an application seeking disclosure of [these documents, the] SHNs and SDRs relating to the three informants referenced in the [Information to Obtain] in [application] of a challenge to the validity of the search warrant . . . The court characterized the accused’s application as follows: Mr. Cobb has brought this application seeking an order for disclosure of all source debriefing reports, handlers' notes, operational plans, and any other documents referring to or containing informer information that in any way pertains to the investigation of [the accused].

He acknowledges that such documents would have to be vetted for privilege. The Crown resisted [the accused's] application on grounds substantially the same as those invoked in the present application, arguing that the materials sought fell outside of the “investigative file” and therefore required the accused to establish the “likely relevance” of the materials as a prerequisite to disclosure.

The Crown further submitted that the accused could not show that the materials sought would be relevant to the challenge to the warrant [order] . . . for the proposition that such a challenge requires disclosure only of the material before the authorizing judicial officer, with other material being legally irrelevant. [A previous decision] acknowledged the narrowed evidentiary ambit of a Garofoli review, [the justice] nevertheless held that Stinchcombe compelled disclosure of materials beyond the Garofoli context . . .

I am reading from paragraph 39 of Justice MacKenzie's decision: . . . including materials which may assist or be useful to the accused “in meeting the case against [him], advancing [a] defence, or making a decision that may affect the conduct of [the trial]. Justice Ballance also rejected the proposition that the SHNs and SDRs sought by the defence fell outside of the Crown's first-party disclosure obligations.

She ruled that the ambit of first-party disclosure must be construed expansively so as to include “material relating to or pertaining to the accused's case in the possession or control of the prosecuting entity”. . . . In that connection, she held that SHNs and SDRs "concerning a particular accused and relied upon by the affiant" could not legitimately be characterized as other than first-party disclosure . . . She concluded that the materials in question were relevant and disclosable, subject to editing to protect informer privilege.

In discussing the issue of whether or not informant-related materials covered by first-party disclosure, Mr. Justice MacKenzie said this at paragraph 64: The Crown urges me to depart from those decisions, however, contending that the evidence now before the court clearly establishes SHNs and SDRs as the product of the general intelligence-gathering function of the police, unrelated to the specific investigation of Mr. McKay or his activities. He goes on to say, at the next paragraph: I accept that argument, as far as it goes. The evidence of Sgt. Hollingsworth and Staff Sgt.

Cater does establish that informant-related materials are usually created in the course of general intelligence-gathering activities by police. However, the officers’ evidence also clearly describes the process through which such materials cease to be mere background intelligence, becoming instead information particularized to the investigation of a particular accused, offence, or activity. In my view, the evidence of Sgt. Hollingsworth and Staff Sgt. Cater strengthens, rather than undermines, the conclusion that such materials are subject to first-party disclosure.

He goes on at paragraph 89 to discuss does informer privilege apply whether informer privilege applies to informant-related materials. In that case, in dealing with the Crown's assertion of informer privilege, the Crown submitted that this privilege applies to all the materials sought by the accused. The court disagreed at paragraph 96, stating: Nevertheless, I see no reason to depart from the reasoning [of] Edwardsen or the cases cited by Punnett J. in his ruling. In R. v.

Leipert , [a 1997 decision of the Supreme Court of Canada] McLachlin J. held that the privilege attached only to information which reveals, explicitly or implicitly, the identity of a confidential informant. The privilege does not prevent disclosure of information which does not reveal the identity of a confidential informant. The Court in Leipert upheld a Crown assertion of blanket privilege only because the anonymity of the tipster made it impossible to determine whether any of the information might or might not reveal the informant’s identity . . . He goes on to say, Mr. Justice MacKenzie, at paragraph 101:

. . . it may be that much of the information in the informant-related materials, other than the details provided in the ITO, would tend to reveal the identity of confidential informants. As a result, it may be necessary to redact entire paragraphs in order to protect the identity of an informant. In such a scenario, I would expect disclosure of materials vetted accordingly.

He rules in favour of the defence, and he summarizes his conclusions starting at paragraph 106: Even if informant-related materials cannot assist the accused in challenging a warrant or on an application to cross-examine an affiant, those materials must nevertheless be disclosed pursuant to Stinchcombe if they constitute fruits of the investigation and are not clearly irrelevant to other issues on the trial.

He goes on to state that: In this regard, the evidence of [the two police officers] describes the process through which confidential informant information usually ceases to be nonspecific, background intelligence routinely collected by police, instead becoming information particularized to an accused, offence, or activity under investigation. This mechanism of particularization is the conduit through which informant-related materials become fruits of the investigation subject to first-party disclosure.

He granted the application, stating: . . . merely because informant-related materials constitute fruits of the investigation does not mean that they must necessarily be disclosed. The Crown must still review the materials and may withhold disclosure if they are clearly irrelevant to the proceeding. Further, disclosure of relevant informant-related materials may nevertheless be refused on the grounds of informer privilege where applicable.

He went on to order that the Crown disclose any such materials that are not clearly irrelevant, subject to editing, to protect informer privilege. [ 24 ] I found the decision of Her Honour Judge Craig to be particularly helpful in these proceedings. It is a 2014 decision of the Provincial Court of British Columbia.

In that case, the defence did not seek disclosure of material that is covered by informer privilege, but asked the court to examine the material and make the final determination as to necessary editing after hearing submissions and taking the relevant factors into consideration. [ 25 ] In that case, the accused had given notice to the Crown that they sought disclosure of the investigating officer's report and the information relied upon by the authorizing judge that is not covered by informer privilege to have a full opportunity to attack the validity of the warrant.

She goes on to say in paragraph 7: In addition, it will be argued that in the ITO there were “material misrepresentations and non-disclosures that undermined the allegations made”.

The defence outlined their argument as such, that: The basis for this concern is that the affiant . . . cannot be relied upon to accurately transcribe and describe the reports of other officers and that a judicial review of the edited information might disclose evidence that could impact on the reliability of the informant. [ 26 ] The issue there was, in part, whether the investigating officer's report, I should say the officer who swore the Information to Obtain or the affidavit to support the application, his report is relevant, not to be disclosed subject to editing for informer privilege.

It was argued that the relevance of the Cst. Jones report was simply made by the Crown, that it was simply background material pertaining to an informer, and not part of the investigative file, nor can it be considered fruits of the investigation subject to first-party disclosure. As such, the material, it was argued by the Crown, is only subject to disclosure if it is shown to be likely relevant. [ 27 ] I am not going to read at great length from Her Honour Judge Craig's decision, because I cannot say it any better than she did, but I can say I agree with the reasoning that she applied in this case.

Quoting from paragraph 24: With respect to the debriefing notes, [she stated] there was nothing to suggest the affiant had reviewed the debriefing notes in preparation of the affidavit or referenced them in the affidavit. In the R. v . Roy case decided by Judge Craig, the defence was alleging: . . . that the affiant provided misleading evidence or did not disclose relevant material in the [Information to Obtain]. She goes on to say at paragraph 31: The right to full disclosure thereby ensures that an accused will have the material necessary to challenge the validity of an authorization.

In the case she was referring to: The Court noted that an accused is provided with disclosure of all of the material relating to the granting of an authorization, including the affidavit filed in support, subject to editing for informant privilege. In addition, the accused is entitled to all potentially relevant material in the possession or control of the Crown in order to launch a challenge to an authorization. Dealing with the issue of likely relevance, she found that Cst. Jones' report is relevant under the standard of relevance set out in R. v.

Stinchcombe and stated even if she were to adopt the standard of “likely relevance” urged by the Crown, she would find the report relevant and subject to disclosure. [ 28 ] She referred at paragraph 39 to the decision of the Supreme Court of Canada in R. v. Basi decided in 2009, where:

The accused had applied for disclosure of material which had been edited out of the disclosure they had received. The Crown claimed that the material was covered by informer privilege and the Crown would not be relying upon it to prove guilt at trial. The Crown sought an in camera and ex parte hearing before the judge to prove the privilege. The trial judge held that counsel for the accused could participate in the hearings, subject to providing certain undertakings.

The Crown appealed the trial judge’s order to allow defence counsel to attend the in camera hearing and the matter made its way to the Supreme Court of Canada. Where: The Court determined that the trial judge had erred in allowing defence counsel to attend the in camera on the issue of informer privilege.

In the course of the reasons of the Court, Fish J. set out the procedure that ought to be followed by a court in determining an issue of informer privilege He stated at paragraph 53: 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. In order to safeguard an accused person’s interest in being present at such a hearing, a trial judge should adopt “all reasonable measures to permit defence counsel to make meaningful submissions regarding what occurs in their absence” . . .

Although there is a broad discretion in this regard, such measures may include inviting submissions on the scope of the privilege and its application in the circumstances of the case, and inviting questions which may be put to the witness(es) by the trial judge at the ex parte proceeding. In addition, in appropriate cases, the court may provide redacted or summarized versions of the evidence presented at the hearing to the defence to ensure fairness to the accused, so long as informer privilege remains protected. Counsel in her case was seeking a hearing of this nature and did not expect to be present.

She concluded that such a hearing would be appropriate and ought to be conducted, taking into account the procedure that she had referred to. [ 29 ] I adopt those reasons and I would think that was the procedure if necessary that I would follow in these proceedings. [PROCEEDINGS] [ 30 ] On this latest issue, the Crown is relying on the Supreme Court case of R. v. Edwardsen , the decision of Mr. Justice Punnett. Date of judgment is September 15th of this year. In my view, this case can be distinguished on the ultimate conclusion found by the Honourable Justice.

He found that the accused had failed to meet its burden under the Basi procedure and dismissed the claims of that application to have the court review the appropriateness of the redactions from each of the materials. He came to that conclusion based on the materials in part, and based on the materials in front of him. What concerns me about this case is the large amount of redactions.

Furthermore, in the earlier requests for disclosure on the concurrent investigation out of Victoria, if I can call it that, the Crown's response was simply, "It's irrelevant." How can defence and how can the court make a determination if we are not presented with those materials? [ 31 ] I find that in these circumstances, and given the seriousness of these cases and the parallel investigations, all justify a Basi hearing, so the court can determine whether or not further disclosure is required, if I can put it that way.

I say that because I know from the past that the Crown has decided that rather than compromise the safety of their informants, they would prefer to stay the case. That is not going to happen on an ex parte hearing in front of me. Nobody's identity is going to be revealed to the public, that is why, in my view, an ex parte hearing would be held. [ 32 ] I prefer the wording that has been suggested by the defence before me, and I am prepared to make that ruling. (RULING CONCLUDED)