Canada (Public Prosecutions) v Alberta (Provincial Court), 2019 ABQB 484

Court of Queen’s Bench of Alberta Citation: Canada (Public Prosecutions) v Alberta (Provincial Court), 2019 ABQB 484 Date: 20190628 Docket: 190206938X1 Registry: Calgary In the Matter of an Application for certiorari, mandamus, and in the alternative pursuant to

section 487.3(4) of the Criminal Code relating to an Order made by a Judge of the Provincial Court of Alberta pursuant to

section 487.3 of the Criminal Code Between: The Director of Public Prosecutions, Agent for the Attorney General of Canada Applicant - and - The Provincial Court of Alberta Respondent _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice R.E. Nation _______________________________________________________ [ 1 ] This decision considers the nature of informer privilege, and whether a provincial court judge has discretion either in giving an original order or reviewing an order, to order anything other than an unlimited sealing order under s. 487.3 of the Criminal Code , when informer privilege is found.

Facts [ 2 ] The facts are as follows: 1. The general procedure in Alberta to obtain a search warrant and sealing order involves the police attending at provincial court. The sworn Information to Obtain (ITO) and a proposed order are left for a judge or justice of the peace to review. As there is no hearing, presentation or discussion, there is no record of reasons, or of the decision of the judge. The ITO is reviewed by the judge or justice of the peace in their office.

The judge or justice of the peace may grant the order as presented; grant the order but change terms in handwriting on the face of the order; reject the application without reasons; or reject it with a brief written explanation. 2. An ITO and a suggested order denying access to information were presented to Judge Brown by Constable Wenngatz of the Calgary Police Service (CPS) on July 10, 2018. During an investigation into drug trafficking activity, an individual was identified as likely to be storing drugs at an address. The application was for a search warrant of that residence. 3.

Constable Wenngatz requested an order denying access to information in the ITO, on the basis of a concern that if access to and disclosure of the information was allowed, it would compromise the identity of a confidential informant, as well as compromise the nature and extent of an ongoing investigation. 4. On July 10, 2018, Judge Brown provided authorization for a search warrant and signed the order denying access to information, however, inserted in handwriting, a limitation on the sealing order "until July 9, 2019". 5.

The CPS had a concern about the limitation of time on the sealing order granted by Judge Brown, only as it related to the disclosure of information about the informant. Thus, the CPS brought an application before another judge of the provincial court, Judge Semenuk, on August 15, 2018, pursuant to

section 487.3 of the Criminal Code asking for a variation of Judge Brown's order, to make the sealing order for an indefinite period of time, as originally requested. 6. No explanation was given why the Crown did not go back to Judge Brown, nor why it was not explicitly pointed out to Judge Semenuk that this was an application was under 487.3 (4). 7. In the application before Judge Semenuk, the Crown did not provide the original ITO that was before Judge Brown.

It relied on a new affidavit of Constable Wenngatz, dated August 15, 2018, which indicated his involvement in a drug investigation in June, 2018, and his presentation of an ITO and suggested order to Judge Brown. He deposed that in the ITO he had asked for an indefinite sealing order because if disclosed, the information "would" compromise the identity of a confidential informant. He swore that he "truly believed" the ends of justice would be subverted by the disclosure of the information and those grounds outweighed in importance access to that information. 8.

Judge Semenuk refused the order, providing the following brief written reasons: "I am not going to second guess an Order already made by my colleague, Brown PCJ. If you want her to change her mind, make another Application before Brown PCJ." 9. On October 18, 2018, Constable Wenngatz again presented an application asking for an indefinite order denying access to information in the ITO. No details of the affidavit or the exact wording of that application were provided to this Court.

Although Constable Wenngatz’s affidavit of February 12, 2019 suggested the application in October was before another provincial court judge, Judge Morgan, in argument the Crown corrected this to indicate the application was brought before Justice of the Peace Morgan. The order was rejected stating that an application must be made under

section 487.3 (4) of the Criminal Code to vary the order rather than initially request it. The Crown concedes a justice of the peace would not have jurisdiction to vary the order. 10. This application was brought, asking for an order for certiorari, on the basis that Judge Semenuk was in excess of jurisdiction, or alternatively, that he refused to exercise jurisdiction to review the sealing order. The remedy requested is that the order of Judge Semenuk be quashed and replaced with an order varying the sealing order of Judge Brown so it is indefinite.

Alternatively, the Crown requests an order for mandamus requiring Judge Semenuk to exercise the court's jurisdiction to consider varying the sealing order. In the further alternative, an order is requested from this Court pursuant to

section 487.3(4) of the Criminal Code for an order varying the sealing order of Judge Brown dated July 10, 2018. 11. In support of the application before this Court, Constable Wenngatz swore a further affidavit on February 12, 2019 which indicated that the informant provided information under the understanding that their identity would be kept confidential, and is therefore entitled to informer privilege.

In addition, he swore that the informant provided information on a drug trafficking network that has access to firearms, indicating a level of risk the informant would face should his or her identity be discovered. Procedural Matters [ 3 ] The Provincial Court of Alberta was served with this application and did not appear. The application was supported by an affidavit of Sara Dzurman, a paralegal with the Public Prosecution Service of Canada.

She outlined a number of situations where the CPS had presented an ITO in support of a search warrant, where there was a concern about informer privilege, and as a result an indefinite sealing order was sought. In several situations, judges of the provincial court or justices of the peace had placed expiry dates in the sealing order. The affidavit outlined an intention to bring an application to vary the limited duration of those sealing orders to be indefinite prior to the expiry of the limiting date.

She outlined the background information in relation to the applications brought before Judges Semenuk and Brown. [ 4 ] The ITO that was before Judge Brown was not provided as part of this application. During the initial argument, this Court pointed out to the Crown the practical evidentiary difficulty with this application. The order denying access to information that was provided with the ITO for Judge Brown to consider, indicated that the requirements of

section 487.3 of the Criminal Code had been met

and that the ends of justice would be subverted by the disclosure of the said ITO, but there was no specific finding on the face of theOrder of informer privilege. [5] The manner in which the ITO is presented means Judge Brown did not give any reasons on the record for her decision.Section 487.3 allows access to information to be denied on more than one ground. The ends of justice could be subverted if there waseither: (1) compromise by the disclosure of the identity of a confidential informant or (2) compromise of the nature and extent of anongoing investigation, or both.

As the constable here applied under both grounds, it is impossible to tell whether Judge Brown made herdecision out of concern to either protect the identity of the informant, or the nature and extent of the ongoing investigation, or both.

Onetherefore cannot tell on the face of the record if Judge Brown made a finding that informer privilege applied. [6] As a result of this concern, the Crown agreed that this Court should give an order allowing the original ITO to be availableto this Court, to ascertain the information before Judge Brown, and also to be considered in this application. [7] Once obtained and reviewed, it became clear that the ITO included sworn information that an anonymous person (tipster)relayed information by telephone to Crime Stoppers.

The ITO disclosed that Crime Stoppers is a privately run organization that collectsinformation relating to criminal behaviour from the public and forwards it anonymously to the police. All tipsters provide theinformation on the basis of anonymity. The information from the tipster is generalized in the affidavit. The ITO outlined actions taken bythe police after receiving the tip to justify why a search warrant should be given for a specific address.

The Law on Informer Privilege [8] The law on informer privilege has been discussed in depth by the Supreme Court of Canada in R v Leipert, (SCC), [1997] 1 SCR 281 (SCC). This case makes it clear that the confidential informer privilege rule, which states that an informantshould be granted protection from information being revealed that may tend to identify his or her identity, is not a discretionary power.Once a judge finds that informer privilege exists, informer privilege is a legal rule of public order by which the judge is bound, at para37.

The only exception to informer privilege is the innocence at stake exception, but it depends on the accused person bringing anapplication with an evidentiary foundation as to why disclosure of the information is necessary. [9] The Crown referenced a case where the Court of Queen's Bench in Alberta addressed this issue in Alberta (Provincial CourtJudge), Re, 2011 ABQB 276.

In that case, Justice Verville found that where informer privilege is established, participants in theadministration of justice have no discretion but to apply the informer privilege rule, and the court has no jurisdiction to limit duration of asealing order regarding information tending to identify the informant. [10] The SCC in Durham Regional Crime Stoppers Inc, 2017 SCC 45, considered whether informer privilege applied to ananonymous tip made to the Crime Stoppers organization by a caller, allegedly with the intention of interfering with the administration ofjustice.

The Court confirmed that the informer privilege rule is a class privilege, it is not determined on a case by case basis. It existswhere a police officer, in the course of an investigation guarantees confidentiality to a prospective informant in exchange forinformation.

It is a complete and total bar to any disclosure of the informant's identity, and belongs to the Crown and the informant,neither can waive it without the consent of the other, at para 11. [11] Dealing with calls to Crime Stoppers, the Court rejected that all persons who call Crime Stoppers are confidential informantsand are entitled to informer privilege as soon as the phone rings, at para 17. Informer privilege attaches if the information given in thecall is to assist the police in the investigation and apprehension of criminals.

It does not exist if the intention is to further criminal activityor interfere with the administration of justice, even if the person has received a promise of confidentiality from the police (or in that case,via the Crime Stoppers program) in exchange for information, at para 22. [12] At paragraph 28, Moldaver J speaking for the Court states "[i]n the case of anonymous tips made to Crime Stoppers, informerprivilege will apply except in those cases where it can be shown that the person called with intention of furthering criminal activity orinterfering with the administration of justice.

When a judge is determining whether informer privilege applies to an anonymous tip madeto Crime Stoppers, he or she must proceed on the assumption that the privilege exists". [13] In determining whether the privilege exists, the judge must be satisfied, on the balance of probabilities, that the individualconcerned is indeed a confidential informant.

At minimum this would require the evidence show that anonymity was promised to theindividual, and on the evidence, there is nothing to suggest the information was provided for reasons other than to further theadministration of justice. [14] If it is established by the evidence in the ITO that informer privilege exists, that privilege is absolute. Thus, any sealing ordershould be of indefinite duration, unless an application is brought otherwise: Named Person v Vancouver Sun, 2007 SCC 43, at paras 18,30 [Vancouver Sun].

Application of the Law to this Case [15] Upon review of the ITO, there is a clear indication of a Crime Stoppers Tip, and information that the program offeredconfidentiality to the tipster. Thus, there is a presumption of informer privilege.

Here, because of the other evidence in the ITO and thefact that the search warrant was granted, it is clear that the information was viewed as accurate, there is no suggestion of any intention tofurther criminal activity or interfere with the administration of justice. [16] Clearly the application of the law to the facts here results in a finding that the sealing order should be of indefinite duration,because a finding of informer privilege must flow from the facts.

Variation of the Original Order [17] The Criminal Code provides in

section 487.3 (4) for termination or variance of an order denying access to information asfollows: An application to terminate the order or vary any of its terms and conditions may be made to the justice or judge who made the order ora judge of the court before which any proceeding arising out of the investigation in relation to which the warrant or production order wasobtained may be held. [18] This means the judge who granted the original order, here Judge Brown, or any judge of the provincial court, or any justice ofthe Queen's Bench may terminate or vary any terms of an order denying access to information. [19] Although it would always be preferable for the application to return to the original judge, who would know the basis of theoriginal order, the wording of

section 487.3(4) makes it clear that any variation of the sealing order may be made by any other judge orjustice (but not a justice of the peace). The difficulty of appearing before another judge or justice is that the information on the originalapplication is not known to that judge or justice. In these applications, a bald assertion that the affiant feels that informer privilege arisesis not sufficient.

Specific information must be provided, for example: that there was a tip through Crime Stoppers, that a promise ofanonymity was given, and any other relevant information, as for example here, that this involved a drug trafficking network with accessto firearms. This would allow a judge or justice asked to review the order to have sufficient information to make the determination thatinformer privilege is at stake.

Once that determination is made, the law is clear that there is no discretion, the order denying access toinformation should not be time defined. [20] Based on the information that I now have before me, using

section 487.3(4), I will amend the original order and grant anorder denying access to information for an indefinite period of time.

The information before me includes the affidavit of ConstableWenngatz sworn in support of this application, and the ITO before Judge Brown, which revealed that it was a Crime Stoppers tip, thatconfidentiality was offered to the tipster, and that police investigations that confirmed the information would indicate on balance that thetipster was acting in the interests of the administration of justice. [21] A question arises whether a review is allowed, if one review application has already been brought and not granted.

Thisquestion does not arise in this case, as the review application before Judge Semenuk was never considered by him, he did not takejurisdiction, and it properly was not considered by Justice of the Peace Morgan, who did not have jurisdiction. Thus, this is the firstapplication for review under

section 487.3 (4) which is actually being considered and decided. [22] I would note, however, that there is nothing in the wording of

section 487.3 (4) that prohibits more than one application tovary or terminate. In similar types of applications, for example a search warrant or wiretap application, if the application is made and notallowed, there is no prohibition against bringing a subsequent application on the same or further evidence as long as the earlierapplication is disclosed. As a result, it would appear that multiple applications under

section 487.3 (4) are permissible. The Certiorari Application The Law on Certiorari [23] Certiorari is available as a tool by which a superior court can supervise the proceedings of a lower court for jurisdictionalerror. It is a discretionary remedy that can apply to interlocutory proceedings in criminal matters and can result in the quashing of aninterlocutory decision. This is a unique remedy as generally interlocutory decisions in criminal matters cannot be appealed. [24] The recent trend in Supreme Court jurisprudence is to emphasize the limited nature of certiorari.

In R v Awashish, 2018 SCC45, the Court noted certiorari is "an extraordinary remedy that is available only in narrow circumstances" at para 2. The Court clarifiedthat in criminal proceedings, certiorari is only available to the parties where there is a jurisdictional error by a provincial court judge, atpara 20.

It may also be available to review errors on the face of the record where there is a final decision relating to a third party, at para20. [25] A jurisdictional error is one "where the court fails to observe a mandatory provision of a statute or where a court acts inbreach of the principles of natural justice" Awashish at para 23.

Certiorari is not meant to be used by the parties to correct errors of law ina lower court: Awashish at para 17. [26] Further, as a discretionary remedy, superior courts may refuse to conduct a certiorari review, even when it is available, wherethere is the existence of an adequate alternative remedy: Bessette v British Columbia (Attorney General), 2019 SCC 31, at para 35. [27] In the past certiorari has been used to review whether access to information in search warrant ITOs was properly prohibited or not: MacDonnell v Flahiff (1998), (QC CA), 157 DLR (4th) 485 (QCCA), leave to appeal refused [1998] SCCA No87; Alberta (Provincial Court Judge).

Certiorari has also been used to quash the decision of a provincial court judge who did not takeadequate measures to protect privileged information in a production order: R v AB, 2013 NLTD(G) 76, aff’d 2014 NLCA 8. Application of the Law to the Facts [28] Judge Semenuk had jurisdiction to review the order of Judge Brown under

section 487.3 (4) of the Criminal Code. He failedto take that jurisdiction, instead indicating the matter should go back to Judge Brown. This failure to take jurisdiction, which is clearlyaccorded to him, may be a jurisdictional error that can be the subject of certiorari.

[29] If so, as a remedy this Court could perform the review that Judge Semenuk was asked to perform. Looking at the informationbefore Judge Brown and before Judge Semenuk, which makes it clear that informer privilege should be found, an indefinite sealing orderis mandatory.

The appropriate remedy would be to amend the sealing order and make it of indefinite duration: R v AB; Vancouver Sun.Judge Brown acted in excess of her jurisdiction, as once informer privilege is proven, the court has no ability to take steps but to protectthat identity indefinitely, as opposed to a time defined period. [30] However, considering the recent narrowing of certiorari in the law, and the lack of argument on the application of that law toJudge Semenuk’s reasons, this Court is hesitant to give an order based on a certiorari remedy. [31] Further, the Supreme Court in Bessette was clear that certiorari is a discretionary remedy.

One reason it can be denied is if anadequate alternate remedy exists, at para 35. As a result of the fact that an alternate remedy is available here, I am not granting certiorari. [32] The alternative request for an order for mandamus is refused on a similar ground. A condition of ordering mandamus is thatthere be no other adequate remedy: Dragan v Canada (Minister of Citizenship and Immigration), 2003 FCT 211, at para 39, citingApotex Inc v Canada (Attorney General), (FCA), [1994] 1 FC 742 (CA), aff'd (SCC), [1994] 3 SCR1100.

Considerations Going Forward [33] As the Crown has identified time limited sealing orders as an ongoing issue, I want to make some comment about the use ofcertiorari proceedings in this situation. As the vast majority of these applications involve search warrants, where sealing orders may begiven in circumstances based on both or either of informer privilege or protection of the ongoing investigations, certiorari may not be theprocedure of choice, unless it can be established on the face of the record that the judge made a determination that informer privilegewas at stake.

In addition, although certiorari may be available, it likely will involve unsealing the original ITO, an additional step whichtakes time. [34] It seems that the preferred method would be to make an application that is clearly under

section 487.3 (4) of the CriminalCode, indicating the information as to why informer privilege should be found, not merely a brief reference to the belief of the constable.The order requested should clearly state a finding of informer privilege. It may well be best for this to go to the issuing judge, who sawthe ITO, but clearly the jurisdiction is to any judge or justice. If the application is before a judge or justice who did not grant the originalorder, care should be taken to ensure that the affidavit in support of the

section 487.3 (4) application provides complete and necessaryevidence for the judge or justice to make a determination that informer privilege exists. New information may well be provided, as it wason this application. It may be necessary, depending on the information that is disclosed in such an affidavit, for the affiant to ask that theaffidavit in support of the variation order be sealed. Result [35] As a result, the order of Judge Brown granted on July 10, 2018 is amended, to strike out the words "until July 9, 2019" as thesealing order should be for an indefinite duration.

Heard on the 3rd day of May, 2019 and the 17th day of May, 2019. Dated at the City of Calgary, Alberta this 28th day of June, 2019. R.E. Nation J.C.Q.B.A. Appearances: Christopher Kalantzis for the Applicant No one appeared for the Respondent