r v. Zephion NELSON, 2014 QCCQ 3011

R. c. Nelson 2014 QCCQ 3011JP 2213 COURT OF QUEBEC CANADAPROVINCE OF QUEBECDISTRICT OFMONTREAL N°: 500-01-093750-138 DATE: April 9, 2014 BEFORE THEHONOURABLEYVAN POULIN, J.C.Q. HER MAJESTY THE QUEEN Prosecutorv. Zephion NELSON Accused RULING ON AN APPLICATION FOR DISCLOSURE OF THE IDENTITY OF A CONFIDENTIAL INFORMANT [1] The accused is charged with 12 counts pertaining to firearms that were seized in a safe found in the closet of a house situated at140 Place du Buisson, in Pierrefonds, Qc. [2] The trial proper started before me on March 28, 2014.

On that date, the Crown filed an indictment containing those 12 counts. [3] On March 3, 2014, the Defense filed a motion entitled "Motion to review the sufficiency of a search warrant subject to section487 of the Criminal Code". At the beginning of the trial on March 28, 2014, an amended version of that same motion was filed. It isstill entitled "Motion to review the sufficiency of a search warrant subject to

section 487 of the Criminal Code" and it specifically refersto sections 7, 8 and 24 of the Charter. [4] Although the motion is entitled motion to review, it is in essence an application for disclosure of the identity of a confidentialinformant. The orders sought by the Applicant are that the identity of the confidential informant be disclosed and that the said informant"be available to testify in open court". PRINCIPLES OF LAW [5] Informer privilege is a firmly entrenched rule of law in Canadian jurisprudence. In Named Person v.

Vancouver Sun [1], theSupreme Court of Canada clearly states that this privilege is both "extremely broad and powerful". At paragraph 30, the Court mentions: [30] In conclusion, the general rationale for the informer privilege rule requires a privilege which is extremely broad and powerful.Once a trial judge is satisfied that the privilege exists, a complete and total bar on any disclosure of the informer’s identity applies.Outside the innocence at stake exception, the rule’s protection is absolute. No case-by-case weighing of the justification for the privilegeis permitted.

All information which might tend to identify the informer is protected by the privilege, and neither the Crown nor the courthas any discretion to disclose this information in any proceeding, at any time. [6] The rationale underlying the informer privilege is explained by the Supreme Court in R. v. Leipert [2], at paragraphs 9-10: [9] A court considering this issue must begin from the proposition that informer privilege is an ancient and hallowed protection whichplays a vital role in law enforcement. It is premised on the duty of all citizens to aid in enforcing the law.

The discharge of this dutycarries with it the risk of retribution from those involved in crime. The rule of informer privilege was developed to protect citizens whoassist in law enforcement and to encourage others to do the same. As Cory J.A. (as he then was) stated in R. v. Hunter (1987), (ON CA), 57 C.R. (3d) 1 at pp. 5-6, 34 C.C.C. (3d) 14 (Ont. C.A.): The rule against the non-disclosure of information which might identify an informer is one of long standing. It developed from anacceptance of the importance of the role of informers in the solution of crimes and the apprehension of criminals.

It was recognized that

citizens have a duty to divulge to the police any information that they may have pertaining to the commission of a crime. It was alsoobvious to the courts from very early times that the identity of an informer would have to be concealed, both for his or her ownprotection and to encourage other to divulge to the authorities any information pertaining to crimes. It was in order to achieve thesegoals that the rule was developed. [10] The rule is of fundamental importance to the workings of a criminal justice system. As described in Bisaillon v.

Keable, (SCC), [1983] 2 S.C.R. 60 at p. 105, 7 C.C.C. (3d) 385, 2 D.L.R. (4th) 193: The rule gives a peace officer the power to promise his informers secrecy expressly or by implication, with a guarantee sanctioned by thelaw that this promise will be kept even in court, and to receive in exchange for this promise information without which it would beextremely difficult for him to carry out his duties and ensure that the criminal law is obeyed. [7] In Named Person v.

Vancouver Sun, supra, at paragraph 26, the Supreme Court confirms that the scope of the rule is extremelybroad in its application as well as its coverage: [26] In addition to its absolute non-discretionary nature, the rule is extremely broad in its application. The rule applies to the identity ofevery informer: it applies when the informer is not present, where the informer is present, and even where the informer himself or herselfis a witness. It applies to both documentary evidence and oral testimony: Sopinka, Lederman and Bryant, at pp. 882-83. It applies incriminal and civil trials.

The duty imposed to keep an informer’s identity confidential applies to the police, to the Crown, to attorneys andto judges: Hubbard, Magotiaux and Duncan, at p. 2-2. The rule’s protection is also broad in its coverage. Any information which mighttend to identify an informer is protected by the privilege. Thus the protection is not limited simply to the informer’s name, but extends toany information that might lead to identification. [emphasis in original] [8] Informer privilege is subject to only one exception, known as the "innocence at stake" exception.

In Leipert, supra, at paragraphs21-22, the Supreme Court defines that exception: [21] In order to raise the ‘innocence at stake” exception to informer privilege, there must be a basis on the evidence for concluding thatdisclosure of the informer’s identity is necessary to demonstrate the innocence of the accused: R. v. Chiarantano, [1990] O.J. No 2603(QL) (Ont. C.A.), per Brooke J.A., affirmed (SCC), [1991] 1 S.C.R. 906.

In Chiarantano, supra, the possibility thatthe information provided by the informer regarding the arrival at a residence of drugs later found in the possession of the accused mightconflict with the evidence of the accused was held not to raise a basis for disclosure pursuant to the “innocence at stake” exception. Thecourt held that the usefulness of the information was speculative and that mere speculation that the information might assist the defenceis insufficient.

If speculation sufficed to remove the privilege, little if anything would be left of the protection which the privilegepurports to accord. [22] On the other hand, circumstances may arise where the evidence establishes a basis for the exception, as where the informer is amaterial witness to the crime or acted as an agent provocateur: see Scott, supra. Where such a basis is established, the privilege mustyield to the principle that a person is not to be condemned when his or her innocence can be proved. [9] In Named Person v.

Vancouver Sun, supra, the Supreme Court states that the innocence at stake exception applies only wheredisclosure of the informer’s identity is the only way that the accused can establish innocence: see paragraph 27. The Court alsoreaffirms that the exception will only apply if there is an evidentiary basis for concluding that the informer’s identity is necessary todemonstrate the innocence of the accused. Mere speculation will not suffice. [10] The Supreme Court of Canada decisions in R. v. McClure [3] and R. v.

Brown [4], both dealing with solicitor/client privilege,are relevant to claims of informer privilege because they define the innocence at stake exception and draw a parallel between informerand solicitor/client privilege. It is clear from reading these decisions, together with R. v. Leipert, supra, that the innocence at stakeexception is extremely narrow and requires that the privilege should only be breached where "core issues going to the guilt of theaccused are involved and there is a genuine risk of wrongful conviction". [11] In R. v.

Ly, 2004 BCCA 173, the Court of Appeal of British Columbia confirms that the innocence at stake exception is theonly basis for breaching informer privilege and that the accused bears a heavy onus in meeting this test. The Court found the originalorder made by a chambers judge - that directed the Crown to produce the informer for examination by defense counsel in camera subjectto an undertaking not to disclose the informer’s identity to their clients - flawed and having been made without any proper factual basis. This procedure was described as "both novel and erroneous".

The Court further opined that a trial judge is best placed to determinewhether the innocence at stake exception applies on the basis of a proper factual record. [13] I consider that much of the difficulty that arose in this case occurred because of the circumstance that this application relating toinformer privilege was brought on before a chambers judge who was not the trial judge.

While one hesitates to be unduly categoricaland say that it could never be the situation that such an application could be properly brought on before a chambers judge or a pre-trialmanagement judge as opposed to the trial judge, it seems to me that the circumstances where this would be an appropriate way toproceed would be extremely rare. […] [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. [12] To determine whether otherwise privileged information should be disclosed pursuant to the innocence at stake exception, thetest developed by the Supreme Court in R. v. McClure must be applied. That test is summarized in R. v. Brown, at paragraph 4. As per

R. v. Marshall [5] , it applies to informer privilege. [ 13 ] In a nutshell, the McClure test comprises a threshold question and a two-stage innocence at stake test. To satisfy the threshold test, the accused must establish that: - The information he seeks is not available from any other source; and - He is otherwise unable to raise a reasonable doubt. [ 14 ] 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 has to demonstrate an evidentiary basis to conclude that the information 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 information to determine whether, in fact, it is likely to raise a reasonable doubt as to the guilt of the accused. APPLICATION TO THIS CASE [ 15 ] In his amended written application, the Applicant laconically states that disclosure of the identity of the informant is necessary to establish his innocence and exonerate him.

He adds that establishing his innocence can only be attained through cross-examination of the informant. No specific detail is given by the Applicant, or his lawyer, as to what is or will be his defense. The Crown's case, at this stage, has not been presented. [ 16 ] It is true that the parties agreed that the Court take cognizance of the Information to Obtain (ITO) and the police report for the purpose of the present application. The Court gathers, from these documents, that a search warrant was issued for the residence situated at 140 Place du Buisson, in Pierrefonds, Qc.

The Court notes that the ITO contains details provided by the confidential informant. This information from the confidential informant refers to the fact that firearms are kept at this address to avoid detection and to prevent being found in possession. Reference is made to a safe. A description of the occupants is given. It is mentioned that many people go to that place to smoke marihuana. [ 17 ] Police surveillance on the evening of August 8, 2013, confirmed that people are coming and going from that residence.

The warrant is obtained and executed that same evening or night. [ 18 ] Pursuant to the report filed by the parties, eight people were found at the residence. A safe containing the firearms was found in the closet of a room allegedly linked to the accused. The Court notes that the accused is not charged of being the owner of the firearms found in that closet. He is charged of being in possession of them. In law, one could be in possession without necessarily being the owner of the firearms. [ 19 ] It is clear from the information filed that other people lived at that address.

When the police entered the premises to execute the warrant, other people were present. They were all identified. These people are all compellable witnesses for the Crown or the defense. [ 20 ] The Court reaffirms that at the present stage, the Applicant only and simply states that disclosure of the identity of the informant is necessary to establish his innocence and exonerate him. He doesn't put any flesh on the bone.

No specific detail is provided by the Applicant as to what is or will be his defense, nor as to the basis - on the evidence - for concluding that disclosure of the informer’s identity is necessary to demonstrate his innocence on the charges of possession. [ 21 ] The Crown's case, at this stage, has not been presented. The Court was not informed as to what will be the defense, if any. Witnesses that could potentially shed light on the circumstances of the offense are known and compellable.

In the particular circumstances of this case, the Court cannot conclude, at this stage, that the innocence of the accused is at stake if the information sought is not disclosed. The Applicant has not established that the information sought is not available from any other source. Nor has he established that he is otherwise unable to raise a reasonable doubt. The Court cannot speculate as to the specifics of the Crown's or defense's case. [ 22 ] The facts of the present case are distinguishable and different from those in R. v. Yakubu [6] on which the defense relies upon.

CONCLUSION At the present stage, for all those reasons, the application for disclosure of the identity of the confidential informant is denied. __________________________________ YVAN POULIN, J.C.Q. M e Éric Poudrier For the prosecution M e Lloyd Fischler For the accused

Date d’audience : March 28, 2014