R. v. McCartie Date:, 2013 BCPC 174

Citation: R. v. McCartie Date: 20130704 2013 BCPC 0174 File No: 74283 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. COLIN McCARTIE AND ANNIE McCARTIE REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.P. MacCARTHY Counsel for the Crown: R. Gibson and M. Down Appearing for the Accused: Colin McCartie on his own behalf and as Agent for A. McCartie

Place of Hearing: Nanaimo, B.C. Date of Hearing: June 25, 2013 Date of Judgment: July 4, 2013 Introduction [1] An in camera proceeding was ordered by the Honourable Judge Gouge for the reasons set out in his judgment cited as R. v.McCartie, 2013 BCPC 150 (CanLll). [2] Those reasons were rendered as a result of an application by the accused Colin and Annie McCartie to compel certaindisclosure by the prosecution, relying on the principles stated in R. v. Stinchcombe (SCC), 1991 CanLll45 (SCC), [1991]3 SCR 326. The accused face various charges under

section 239 of the Income Tax Act and 327 of the Excise Tax Act. [3] Judge Gouge has been assigned to be the trial judge in this matter. At paragraph 24 of his reasons, Judge Gouge noted theprocedural difficulties caused by him conducting the in camera hearing if he is to preside at the trial.

An in camera proceeding, in theabsence of the accused, says Judge Gouge conflicts with the: “fundamental principle of justice, which admits of few exceptions (and only those which can be justified by the most pressing necessity),that an accuse person is entitled to be present at all parts of the proceedings against him, and to see or hear, and challenge all of theevidence to be tendered against him.” [4] Judge Gouge held that as the trial judge he should not be privy to any information to which both the accused were not alsoprivy and directed that another judge conduct the in camera hearing. [5] I was previously assigned to deal with case management issues arising out of these charges and to deal with pre-trial mattersand various pre-trial applications [see for example: R. v.

McCartie 2012 BCPC 510 (CanLll), 2012 BCPC 510]. Therefore, I wasassigned to conduct the in camera hearing. [6] At the centre of the disclosure issue is a confidential tip received by Canada Revenue Agency (“CRA”) over which Crownclaims confidential informer privilege, as to the date that the confidential tip was received and the contents of that tip. [7] Judge Gouge concluded at paragraphs 20 and 21 of his reasons that the confidential tip may be relevant to a “Jarvis defence” tothe charges against the accused [see R. v. Jarvis 2002 SCC 73 (CanLll), [2002] 3 SCR 757].

Accordingly, at paragraph 23 of his reasonshe directed that an in camera hearing be held to determine: 1) whether the confidential tip is relevant, and if so 2) whether the privilege asserted by the Crown exists in this case.

Submissions Prior to the In Camera Hearing [8] Prior to the commencement of the in camera hearing, in open court, I received written submissions and heard oral submissionsfrom both the Crown and from Colin McCartie on behalf of both of the accused. [9] At the outset of the open court hearing, Crown confirmed that they were not, at that time, making an objection to disclosure ofinformation as provided for under

section 37 of the Canada Evidence Act, but they reserved their right to do so. Such an application isgoverned by section 37 (3) of the Canada Evidence Act and must be determined by the Supreme Court of British Columbia. [10] The informer privilege rule confirmed by R. v. Leipert, (SCC), [1997] 1 S.C.R. 281 is a total bar to thedisclosure of any information which might tend to identify the informer’s identity. It has a notable sole exception. That is the “innocenceat stake” exception. [see Named Person v. Vancouver Sun, 2007 SCC 43, at paras. 28 & 30, citing Leipert].

It is common groundbetween the prosecution and the Defence, as expressed in the open court submissions, that this sole exception does not apply in this case. [11] In open Court, Crown also stated that the informer in this case is a confidential known informer, (that is known to CRA) and notan anonymous informer.

Summary of Crown Position

[12] At paragraph 119 of the Crown’s written submission, the following

summary of its position on the subject matter of the incamera proceedings appears: [119] The Crown’s position is that the application for disclosure of the date and contents of the informer tip should be dismissed,because: 1. The informer falls within the scope of informer privilege; 2. The very narrow exception for “innocence at stake” does not apply, and 3. The Court should decline to edit the informer tip.

The Crown submits that (the) Court cannot be certain that revealing the date or anycontents of the informer tip (would) not lead (to) identification of the informer. [13] In support of their submissions, Crown referred me to and relies primarily upon the following authorities: 1. R. v. Basi, 2009 SCC 52 (“Basi”); 2. R. v. Leipert, (SCC), [1997] 1 SCR 281 (“Leipert”); 3. R. v. Scott, (SCC), [1990] S.C.J. No. 132 (“Scott”); 4. Named Person v. Vancouver Sun, 2007 SCC 43 (“Named Person”); 5. R. v. McLellan, 2013 BCSC 175 (“McLellan”); 6. R. v.

Omar, 2007 ONCA 117 (“Omar”). [14] Crown submits that the recent British Columbia Supreme Court decision of McLellan is a useful guide for me in this matter.

McLellan also dealt with charges of making false statements and evading income tax, where an anonymous tip was the focus of adefence application for disclosure and in which disclosure was opposed by Crown on the basis of informer privilege. [15] At paragraph 22 the court in McLellan says: 22 Where informer privilege is asserted in circumstances where the accused's innocence is not at stake, he is not entitled to receiveany material that tends to identify the informant.

Innocence is not at stake in the circumstances of this case [16] In the matter before me, Crown has provided some limited disclosure to the Defence as to a range of dates that Annette Coles,an auditor with CRA, reviewed the tip after she had been assigned the audit of the accused. [17] In McLellan, our Supreme Court was dealing with an appeal of a decision of a Provincial Court trial judge who had made anorder for limited disclosure requiring Crown to disclose “only those allegation(

s) made in tips(

s) about criminal breaches of the IncomeTax Act” by the accused in that case (see paragraph 4 of McLellan). [18] McLellan considers fully the so called redaction cases in which judges review confidential tips and edit out information that thecourt believes might identify the informant.

Justice Willcock, having reviewed the analysis on this point in Leipert at paragraph 36 andin Omar at paragraph 37 of his reasons states in paragraphs 38 and 49 as follows: 38 It is therefore open to a trial judge to edit information provided by a known informant where there is a certainty that doing so willnot result in the identity of the informant being disclosed, and to produce a redacted version of the information to the accused.

Because itis "virtually impossible" to know what details of a tip might tend to identify an anonymous informant, it will rarely be possible to havethe requisite certainty in cases where the informant is anonymous. 49 An analogous position, caught between the duty to the court to respect the disclosure order and the duty to the justice system toprotect informer privilege. If an order to produce a redacted document is made by order of the Court the redaction must be the court'sredaction.

It must be founded upon the Court's certainty that the redacted document will not result in the informant's identity beingrevealed. Claims for privilege, as the court noted in Basi, must be resolved "accurately and fairly". [19] In McLellan, Justice Willcock overturned the trial judge’s order regarding limited disclosure. At paragraph [118] of theirsubmissions, again relying upon McLellan, Crown points to the cautionary language found at paragraphs 56 and 57 of that decision and

urges that particular approach upon me: [118] At the invitation of Crown, the Court also reviewed the contents of the tip and determined: 56 It is not possible for me to identify any material information provided by the informant(

s) the disclosure of which will certainly not give rise to a risk the informant(

s) might be identified. 57 Bearing in mind the caution expressed in Leipert with respect to the disclosure of information provided by anonymous informants I am unable to redact the information in a manner that protects the near-absolute privilege which attaches to it. I find all of the material provided to the CRA to be protected by informant privilege and direct that it shall not be disclosed to anyone other than those who have received it

Summary of the Defence Position [ 20 ] Significant reliance was also placed upon McLellan in the Defence’s submissions. [ 21 ] In

summary, Defence says that if I find that informer privilege applies, then the Defence ultimately seeks a limited disclosure order, similar in nature to the order made by the trial judge in McLellan , which is described at paragraph 4 of the McLellan Supreme Court decision. [ 22 ] As I understand it, Defence contends that the err of the trial judge in making the limited disclosure order in McLellan really results from making too broad an order that risked identifying an anonymous informant and in making an order that did not specifically describe what material Crown could disclose.

Defence further says that since it was an anonymous informer situation, rather than a confidential informer case, an order for redacted disclosure should not have been made.

Because this is a confidential informer situation, that problem does not arise in this case says Defence. [ 23 ] I further understand from the Defence’s submission that they accept the proposition that a limited disclosure order can only be made if the Court is of the opinion that making the order does not put at risk the disclosure of the informer’s identity. [ 24 ] I also understand that Defence is submitting that I should consider ordering Crown provide them with a redacted or edited version of the confidential tip. [ 25 ] At the least, as part of that limited disclosure order, the Defence seeks answers to the following information: 1.

When did CRA auditor Ms. Annette Coles review the informant tip? 2. By way of a “yes” or “no” answer did the tip contain any words which could be construed as constituting accusations of criminal violations of the Income Tax Act and or the Excise Tax Act , on the part of Mr. and/or Mrs. McCartie? [ 26 ] At paragraph 9 of their submissions, the Defence says as follows: However, even in the event the Court finds that informant privilege exists, if the identity of the informant is known it may be possible to engage in a more searching enquiry.

In McLellan at para 36 , it states: 36 In Leipert the court held that because there was no discretion to "balance off" other interests against informer privilege and because it is "virtually impossible" to know what details of a tip might tend to identify an anonymous informant, a tip from such an informant should not be edited unless the accused can bring himself within the innocence at stake exception.

Where the identity of the informant is known to the state agents it may be possible to engage in a more searching enquiry: 32 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. ( Leipert at paragraph 32) [ 27 ] It is Defence’s further submission, that whereas in the case an anonymous informant, it is very difficult to know what information that is ordered disclosed could reveal the informant’s identity, the answers sought here as part of a limited disclosure order relating to a confidential informer “pose no risk at all of identifying the informant”. [ 28 ] That position is based upon the assertion that Crown has already disclosed that “Ms.

Coles reviewed the tip at least six months after CRA first received the tip.” It is also argued that there is no risk of identifying the informant by providing a “yes or no confirmation of whether the tip contains words which could be construed as allegations of criminal violations of the ITA/ETA without disclosing what

the specific allegations are ...” (see paragraph 11 of the Defendant’s submission). Results of the In Camera Hearing [29] During the in camera hearing I considered the confidential tip.

As stated by Crown in open court, it is from a confidentialinformer and not an anonymous informer. [30] My response to the questions of Judge Gouge contained at paragraph 23 of his reasons are as follows: 1. the confidential tip is relevant to a question in issue in this proceeding. 2. the confidential informer privilege asserted by the Crown, the scope and effect of which is described in Leipert, Named Person, Basiand Scott, exists in this case [31] This is a situation in which the directions of McEachern C.J.B.C., cited by McLellan at paragraph 30, on the issue of an orderdisclosing any redacted version of the tip must prevail: 30 In approaching redaction, a judge should bear in mind the caution expressed by McEachern C.J.B.C. in R. v.

Leipert (1996), (BC CA), 74 B.C.A.C. 271: 35 [I]n my opinion, judges should be exceedingly cautious about ordering the production of even a carefully edited tip sheet orreport for which informant privilege is claimed. Judges should recognize that any confidence they may have about their ability to edit outinformation that might disclose the identity of an informant is probably misplaced, and possibly dangerously so. The court cannot stepinto the shoes of the accused and decide, on the basis of his knowledge, that an informant will not be identified.

I need only mention thatthe accused may know that only some very small circle of persons, perhaps only one, may know an apparently innocuous fact that ismentioned in the document. The privilege is a hallowed one, and it should be respected scrupulously. [32] In Leipert the Supreme Court of Canada at paragraph 32, noted above, was specifically dealing with an anonymous informersituation. [33] Omar makes it clear, having made specific reference to paragraph 32 of Leipert that the principal stated therein cannot be seento apply only to anonymous informers. Omar dealt with a confidential informant.

Given the nature of the tip in that case, the OntarioCourt of Appeal concluded that there was: “a significant risk on the facts of this case that revealing the slightest detail about the informer could serve to permit the (accused) toidentify who the informer is.

In my view, the trial judge’s order requiring disclosure of the edited document risked violating informerprivilege in a manner that was contrary to the established jurisprudence on informer privilege.” (see Omar at paragraph 44) [34] The Defence’s asserted distinction about the greater risk of identifying an anonymous informer and the lesser risk of identifyinga confidential informer in the matter before me does not temper, in any material way, what I view as a significant risk of possibleinformer identification that could arise out of any of the disclosure being sought.

As such it risks a violation of informer privilege ascontended by the Crown. Resulting Orders [35] Therefore, in order to protect the informer privilege I cannot properly make an order for Crown to disclose the answers to thequestions that have been posed nor can I provide those answers to the Defence.

That would amount to an infringement of the assertedinformer privilege. [36] The original and any photocopies of any and all documents relating to the confidential tip will be put in a sealed envelope in thecourt file and further such envelope is not to be opened nor unsealed without further order of this Court. [37] The DARS recording of the in camera proceedings will not be made available to anyone without further Court order and notranscripts of that in camera proceeding will be made available without further Court order. BY THE COURT __________________________________ The Honourable Judge J.P.

MacCarthy Provincial Court Judge