R. v. Sparks and Ritch, 2020 NSSC 125

SUPREME COURT OF Nova Scotia Citation: R. v. Sparks and Ritch , 2020 NSSC 125 Date: 20200406 Docket: CRH 482163 Registry: Halifax Between: Her Majesty the Queen v. Samanda Rose Ritch And Calvin Joel Maynard Sparks Decision: Voir Dire 4 In camera ex parte Crown application asserting Privilege Subject to a Sealing Order pursuant to

Section 487.3 of the Criminal Code of Canada Redacted to Protect Privilege Judge: The Honourable Justice Christa M.

Brothers Heard: October 23 and 28, 2019, in Halifax, Nova Scotia Oral Decision: October 28, 2019, in Halifax, Nova Scotia Written Decision: April 6, 2020 Counsel: Robert Kennedy and Steven Degen, for the Crown Peter Planetta and Hanna Garson, for Samanda Ritch Malcolm Jeffcock, Q.C. and Alexander McKinnon for Calvin Sparks Overview [ 1 ] This is an application to determine whether confidential informer privilege has been established in relation to certain information whose disclosure is sought by the accused, Calvin Joel Maynard Sparks. [ 2 ] On October 16, 2019, defence counsel for Mr.

Sparks filed a Notice of Application seeking disclosure of the following information, prior to the trial scheduled to commence, November 4, 2019: All communications by text message, email or if by telephone any notes of the call content, between either [text omitted] and [text omitted] or [text omitted] and [text omitted] along with any and all reports created by or at the request of either [text omitted] in relation to [text omitted] together with the particulars of any telephone or other device of [text omitted] to which text messages, communications or telephone calls were sent.

If that device in the possession of the Crown/police disclosure of all content of that device are also requested. All requests are in relation to the period of May 1, 2017 and June 18, 2017. [ 3 ] On October 17, 2019, in response to the Notice of Application, the Crown asserted privilege in relation to the information sought arguing it was not disclosable. The Crown requested an in camera ex parte hearing to decide the privilege claim.

[ 4 ] The parties followed the procedure set forth in R. v. Basi , 2009 SCC 52 , and R. v. A.A.A ., 2015 NSPC 98 . The first-stage hearing proceeded in camera and ex parte to address the merits of the privilege claim. The Crown called evidence at this stage. Mr. Jeffcock, counsel for Mr. Sparks, had an opportunity to participate, taking into account the in camera nature of the hearing. He provided correspondence to the court on October 18 and 22, 2019, reviewing caselaw and proposing questions to be asked of witnesses.

The other accused, Samanda Rose Ritch, did not provide submissions on caselaw, process, or questions. Ms. Ritch took the position that this issue had no relevance to her defence. [ 5 ] After hearing evidence on October 23 and October 28, 2019, I concluded, on balance, that the information sought by Mr. Sparks is covered by privilege. With the trial commencing November 4, 2019, I gave a “bottom-line” decision in keeping with R. v. Jordan , 2016 SCC 27 , and R. v. Cody , 2017 SCC 31 , and advised counsel I would provide written reasons. These are my reasons.

Procedure/ Process Where Privilege is Asserted [ 6 ] There was no dispute that the first stage was an in camera ex parte hearing in order to determine whether the privilege arises. To say the least, this approach is counterintuitive in the criminal law, where an accused is to be present for his or her whole trial ( Criminal Code , s. 650 ). In setting the procedure, I relied on Basi , supra, and A.A.A. , supra , which confirm that because defence counsel are outside the “circle of privilege” asserted, they were not to be permitted access to any information concerning the claim of privilege.

The existence of the privilege must be determined in camera without the accused or defence counsel in attendance. Some nineteen questions were proposed by Mr. Jeffcock. Two witnesses testified.

The Crown asked most of the questions proposed by the defence, and where the questions were not asked by Crown counsel, I asked them at the end of the Crown’s direct examination. [ 7 ] The determination to be made on an application of this kind was described in Basi , supra , where the court stated: [39] 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. And if the claim of privilege is established, the judge must give it full effect.

As we have seen, Named Person established that trial judges have no discretion to do otherwise. [ 8 ] Basi, supra , is instructive with respect to the significance of conducting the hearing ex parte : [44] It thus remains as true in this case as it was in Named Person that “[w]hile the judge is determining whether the privilege applies, all caution must be taken on the assumption that it does apply” (para. 47). No one outside the circle of privilege may access information over which the privilege has been claimed until a judge has determined that the privilege does not exist or that an exception applies.

It follows that the trial judge erred in permitting defence counsel to hear the testimony of an officer tending to reveal the identity of the putative informant at the “first stage” hearing. .... [55] In order to protect these interests of the accused, trial judges should adopt all reasonable measures to permit defence counsel to make meaningful submissions regarding what occurs in their absence.

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

Defence counsel may be invited as well to suggest questions to be put by the trial judge to any witness that will be called at the ex parte proceeding. [57] In appropriate cases, fairness may require the court to provide the defence with a redacted or summarized version of the evidence presented ex parte — edited to eliminate any possibility of disclosing the informant’s identity — so as to permit the trial judge to receive additional submissions from the defence on whether the privilege applies in the particular circumstances of the case.

In particularly difficult cases, the trial judge may appoint an amicus curiae to attend the ex parte proceeding in order to provide assistance in assessing the claim of privilege. [58] In the present case, permitting defence counsel to make submissions and to propose questions to be put by the court to the witness at the ex parte hearing might well have been appropriate. The trial judge, however, will be in a better position to decide how best to craft safeguards that mitigate any potential unfairness arising from the ex parte nature of the proceedings.

The adoption of appropriate initiatives is therefore best left to the trial judge. [ 9 ] In this case, I did not think it appropriate to redact portions of the testimony and seek additional clarification, which has been described as a dangerous practice. As in R. v. A.A.A., supra , I did not solicit further contributions from defence counsel, given that [text omitted] evidence was unambiguous. [ 10 ] Basi , supra , indicates that the court must take all reasonable measures to ensure that an accused can participate to the greatest extent possible while still upholding the privilege.

The ways in which this can be achieved include allowing defence counsel to make submissions as to procedure; inviting defence counsel to make submissions on the scope of privilege; allowing defence counsel to submit questions to be asked by the Court during the hearing; providing defence counsel with a redacted or summarized version of the evidence; and, in rare cases, appointing an amicus curiae . [ 11 ] Mr. Jeffcock suggested an amicus curiae at the first stage. In this case, I concluded that, as in A.A.A. , supra , there was no need for an amicus .

I applied the law which was largely agreed upon by defence and Crown to the facts that I found. I bear in mind the comments in Basi , supra , that a court determining whether a claim of privilege is established should “make every effort to avoid unnecessary complexity or delay, without compromising the ability of the accused to make full answer and defence” (para. 53.) [ 12 ] I also concluded that there was no utility in ordering further information disclosed to the defence.

In deciding not to provide defence counsel with a redacted or summarized version of the evidence, I note the following remarks by the majority in R. v. Leipert,

(SCC), [1997] 1 S.C.R. 281: 28 The ultimate issue on this appeal is whether the trial judge erred in editing the tip sheet to remove references to the informer’sidentity and in ordering the edited sheet disclosed to the appellant. In addressing this question, I have regard to the followingpropositions, discussed above. Informer privilege is of great importance. Once established, the privilege cannot be diminished by or“balanced off against” other concerns relating to the administration of justice. The police and the court have no discretion to diminish itand are bound to uphold it.

The only exception to the privilege is found where there is a basis to conclude that the information may benecessary to establish the innocence of the accused. The scope of the rule extends not only to the name of the informer, but to any detailswhich might reveal the informer’s identity. It is virtually impossible for the court to know what details may reveal the identity of ananonymous informer.

The same considerations apply on challenges to search warrants or wiretap authorizations. [13] Lastly, judges should be exceedingly cautious about ordering production of even a carefully edited tip sheet or report for whichprivilege is claimed. Judges should recognize that any confidence they may have about their ability to remove information that mightdisclose the identity of an informant is probably misplaced, possibly dangerously. The court cannot step into the shoes of the accusedand decide, on the basis of his knowledge, that an informant will not be identified.

I need only mention that the accused may know thatonly some very small circle of persons, perhaps only one, may know an apparently innocuous fact that is mentioned in the document. The privilege is a hallowed one, and it should be respected scrupulously. [14] I add that had I delayed my decision in order to furnish defence counsel with redacted details of the evidence that did not tend toidentify the privileged informant to allow defence counsel to make additional submissions on how the law of privilege applied, I wouldnot have been able to provide anything of assistance.

The law of informer privilege [15] Confidential informant privilege allows an individual to provide information to the police on a confidential basis secure in theknowledge that their identity will not be revealed. This privilege arises when the police expressly or implicitly guarantee the prospectiveinformer confidentiality in exchange for information. The rationale for providing confidential informers is seen as a public interestallowing the police to further investigations they otherwise would not be able to advance without the information provide by confidentialinformants.

As the court in Leipert, supra, stated at paragraphs 9: 9 A court considering this issue must begin from the proposition that informer privilege is an ancient and hallowed protectionwhich plays a vital role in law enforcement. It is premised on the duty of all citizens to aid in enforcing the law. The discharge of thisduty carries with it the risk of retribution from those involved in crime. The rule of informer privilege was developed to protect citizenswho assist 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 (Ont.

C.A.), at pp. 5-6: 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 thatcitizens 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 others to divulge to the authorities any information pertaining to crimes. It was in order to achieve thesegoals that the rule was developed. [16] In Named Person v. Vancouver Sun, 2007 SCC 43, [2007] 3 SCR 253, the majority said: 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 theprivilege is permitted.

All information which might tend to identify the informer is protected by the privilege, and neither the Crown northe court has any discretion to disclose this information in any proceeding, at any time. [17] The majority in Leipert quoted the trial judge’s remark that “[t]he privilege is a hallowed one, and it should be respectedscrupulously” (para. 18). [18] As is required by law, I started with the proposition that informer privilege is an ancient and hallowed protection, which plays avital role in law enforcement. This is premised on the duty of all citizens to aid in enforcing the law.

The need for the privilege arisesbecause the discharge of these duties carries a real risk of retribution from those involved in criminal enterprises. It is a protectionafforded to citizens who assist in law enforcement and is also provided to encourage other citizens to do the same. A good review of thereasoning behind informer privilege was provided by Bastarache J. for the majority in Named Person: 1 Information is at the heart of any legal system.

Police investigate crimes and act on the information they acquire; lawyers andwitnesses present information to courts; juries and judges make decisions based on that information; and those decisions, reported by thepopular and legal press, make up the basis of the law in future cases. In Canada, as in any truly democratic society, the courts areexpected to be open, and information is expected to be available to the public.

However, from time to time, the safety or privacyinterests of individuals or groups and the preservation of the legal system as a whole require that some information be kept secret. [19] Informant privilege is not a legal right that can be balanced against other competing rights or interests. The privilege cannot berelieved through judicial discretion. It is a legal rule of public order and the court is bound by that rule (R. v. Omar, 2007 ONCA 117). In Basi, supra, the court described the parameters of the privilege: [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).

... [40] Finally, the informer privilege belongs jointly to the Crown and to the informant. Neither can waive it without the consent of theother. [20] In R. v. Durham Regional Crime Stoppers Inc., 2017 SCC 45, the court summarized the nature of the class privilege and itspurposes (some citations omitted): [11] Informer privilege is a common law rule that prohibits the disclosure of an informer’s identity in public or in court. As a classprivilege, informer privilege is not determined on a case-by-case basis.

It exists where a police officer, in the course of an investigation,guarantees confidentiality to a prospective informer in exchange for information... The privilege acts as “a complete and total bar” on anydisclosure of the informer’s identity, subject only to the innocence at stake exception: Named Person v. Vancouver Sun, 2007 SCC 43,[2007] 3 S.C.R. 253, at para. 30. All information which might tend to identify the informer is protected by the privilege: ibid.

Theprivilege belongs both to the Crown and to the informer and neither can waive it without the consent of the other: ibid., at para. 25. [12] As with all privileges, informer privilege is granted in the public interest. Informers pass on useful information to the policewhich may otherwise be difficult or even impossible to obtain. They thus play a critical role in the investigation of crime and theapprehension of criminals. The police and the criminal justice system rely on informers — and society as a whole benefits from theirassistance...

In fulfilling this important role, informers often face the risk of retribution from those involved in criminal activity...Accordingly, informer privilege was developed to protect the identity of citizens who provide information to law enforcement... Byprotecting those who assist the police in this manner — and encouraging others to do the same — the privilege furthers the interests ofjustice and the maintenance of public order...

As this Court noted in Bisaillon: The public interest which requires secrecy regarding police informers’ identity is the maintenance of an efficient police force and aneffective implementation of the criminal law. [p. 97] Likewise, in Named Person, LeBel J., writing in dissent, but not on this point, stated that: the social justification for this privilege was found in the need to ensure performance of the policing function and maintenance of law andorder. [21] The Crown has the burden on a balance of probabilities. In R. v.

Brassington, 2018 SCC 37, [2018] 2 SCR 617, the court said: [34] Informer privilege arises in circumstances where police receive information under a promise of confidentiality. Such a promisecan be explicit, or can arise implicitly from police conduct that would “have led a person in the shoes of the potential informer to believe,on reasonable grounds, that his or her identity would be protected” (R. v. Named Person B, 2013 SCC 9, [2013] 1 S.C.R. 405, at para.18).

Informers are entitled to rely on the promises that police officers make to them because they are otherwise at serious risk ofpotential personal danger if their cooperation becomes known (Named Person v. Vancouver Sun, 2007 SCC 43, [2007] 3 S.C.R. 253, atpara. 16). And “[w]hen it is known in the community that an individual’s identity is privileged if he or she provides confidentialinformation to the police, others may come forward” (Hubbard, Magotiaux and Duncan, at p. 2-2). [22] In R. v.

Scott, (SCC), [1990] 3 S.C.R. 979, the majority commented upon the irrelevance of informers’ motives,at 994: The value of informers to police investigations has long been recognized. As long as crimes have been committed, certainly as long asthey have been prosecuted, informers have played an important role in their investigation. It may well be true that some informers actfor compensation or for self-serving purposes.

Whatever their motives, the position of informers is always precarious and their role isfraught with danger. [23] The privilege is subject to only one exception, that is, the “innocence at stake” exception (R. v. Barros, 2011 SCC 51, [2011] 3S.C.R. 368, at para 1). Whether the evidence establishes that Mr. Sparks’s innocence is at stake will be dealt with at another stage. [24] There is no end to the privilege unless there is waiver by both the informer and the Crown. Not even death of the informer endsthe privilege, as the court discussed in R. v.

Anderson, 2013 SKCA 92: [141] There are strong policy reasons for maintaining informer privilege beyond death. Informer privilege arises out of the value thatinformers can have to a police investigation. Informer privilege is necessary for two reasons: (1) protection; and, (2) encouraging othersto do the same. The Supreme Court of Canada in Named Person v. Vancouver Sun, 2007 SCC 43, [2007] 3 S.C.R. 253, quoting R. v.Hunter (1987), (ON CA), 57 C.R. (3d) 1 (Ont.

C.A.), stated at para. 101: It was also obvious to the courts from very early times that the identity of an informer would have to be concealed, both for his or herown protection and to encourage others to divulge to the authorities any information pertaining to crimes. It was in order to achieve thesegoals that the rule was developed. [142] Extending the privilege beyond death continues to further the two goals mentioned in the foregoing excerpt. Courts haverecognized that protection does not just include the informer personally, but also the family and friends associated with that person.

Also, it is critical for the police to be able to represent to the potential informers that informer privilege is “nearly absolute” (R. v. Basi,2009 SCC 52, [2009] 3 S.C.R. 389, at para. 37). The ability to maintain a single limited exception to the privilege seems to be consistentwith the policy objective of encouraging people to come forward to assist the police. [25] If the court is not satisfied a person is a confidential informant, disclosure is ordered, subject to the Crown seeking review.

Ifthe Court is satisfied a person is a confidential informant and the privilege applies, nothing can be disclosed that tends to identify theperson subject only to the innocence at stake exception. The privilege prevents not only disclosure of the name, but of any informationthat might implicitly reveal the name of the informant (Leipert, supra). The privilege also overrides the Crown’s Stinchcombe

obligations ( Named Person ). Waiver [ 26 ] I must determine whether there has been any waiver of the privilege. As noted earlier, the privilege belongs to the informer and the Crown, and the Crown cannot waive it without the informer’s consent, and vice versa . In R v. X , 2012 BCSC 325 , the court referred to R. v. Nicholson , 2001 BCSC 752 , and said: [156] In Nicholson , K.J.

Smith J. (as he then was), considered whether the Crown’s disclosure of some protected statements by an informant witness without the permission of the informant constituted waiver so that the witness could be examined upon those protected statements at trial as he had been at the preliminary inquiry. [157] At paras. 13-16 Smith J. wrote: [13] As already noted ( see R. v. Leipert , supra , para. 15 ), the Crown cannot waive the privilege either expressly or by implication without the informer's consent. Here, the Crown did not have the witness's consent to disclose his statement in its entirety to the defence.

Although the witness knew that his presence as a witness in court might be required, that does not amount to a consent to waive the privilege. Such a consent must be a specific consent : see R. v. Multani, [1999] O.J. No. 3487 (Q.L.) (O.C.J.(G.D.)), paras. 21a-22. [14] Further, the consent must be informed in the sense that the witness knew of his right to refuse to consent to a waiver of the privilege and that he knew of the consequences of a waiver . No evidence was led of any facts that would support a conclusion that there was an informed consent here. Indeed, Mr.

Peck advised that the witness instructed him that he did not at any time waive the privilege. Moreover, the witness tried, unsuccessfully, during the preliminary hearing to avoid giving answers that would abridge the privilege. [15] I agree with Mr. Peck's submission that to conclude that inadvertent disclosure of privileged information could amount to a waiver of the informer privilege would be to undermine the public policy purposes of the privilege . As was said in R. v.

Leipert , supra , at para. 16 : … courts must exercise great care not to unwittingly deprive informers of the privilege which the law accords to them. I would add that courts ought not to find that either the Crown or the informer may unwittingly waive the privilege which, after all, is a protection provided for the public benefit, not just for the benefit of the particular informer . [16] Finally, it is no answer for defence counsel to say, as they do here, that the identity of the witness as an informer has already been disclosed and nothing is to be gained for his protection by enforcing the privilege.

Disclosure of any information that might implicate a witness as a police informer is precluded by the informer privilege, even though the witness's identity as an informer has been inadvertently disclosed: see R. v. Hazelwood , [2000] O.J. No. 459 (Q.L.) (O.S.C.J.) at paras. 18-26 . Accordingly, any further disclosure or cross-examination on the matters inadvertently disclosed would be improper without the specific consent of the witness and, as well, could potentially further undermine his security and act as a disincentive for other citizens to come forward to report crime. [Emphasis in R. v.

X. ] [158] Waiver must therefore be clear, fully informed (both as to the right to refuse to waive the privilege and knowledge of the consequences), as well as unequivocal. [ 27 ] In the matter before me, neither the Crown nor the police breached any privilege. There is some evidence to suggest that the informant either admitted to [text omitted] involvement as an informant, or someone [text omitted]. This is not enough on its own to prove a waiver of the source’s identity.

Further, as pointed out in Nicholson , supra , inadvertent disclosure of privileged information cannot amount to a waiver of the privilege. [ 28 ] In R. v. Hazelwood , [2000] O.J. No. 459 (Ont. Sup. Ct. J.) , the court stated that the fact that there has been a disclosure of information implicating a witness as a confidential informant does not mean that further disclosure through cross-examination or in other ways would be proper. Without the specific informed consent of the witness, inadvertent disclosure will not provide the foundation for complete disclosure of the information.

Evidence at the hearing [ 29 ] Having reviewed the applicable legal principles, I will review the evidence heard on this in camera ex parte hearing. [Text Omitted - First Witness] [ 30 ] [Text Omitted] testified that [text omiited] had been a member of the Halifax Regional Police for 15 years, and was currently in the Criminal Intelligence Unit. [Text omitted] role involves gathering information concerning criminal activities, maintaining and developing sources, and attempting to gain insight into criminal organizations. [Text omitted] would also develop source information to assist in obtaining informations to obtain (ITO) and search warrants. [Text omitted] had worked with informants for the previous twelve years. [Text omitted] had training in policy, procedures, and legalities around handling sources, and protecting privacy of the information of individuals working with the police. [Text omitted] spoke of the importance of preventing sources from being identified, noting that it was important to keep all information confidential, because even what may seem innocuous may identify a source, and revelation of a source could lead to retribution. [ 31 ] [Text omitted] described what a source pitch is. [Text omitted] said [text omitted] explains to a source [text omitted] responsibility to protect their identity. [Text omitted] testified about the determination of who to make source pitches to. [Text omitted] said the most common method of communication with sources is [text omitted]. [Text omitted] with the source involved in this matter.

To maintain confidentiality [text omitted] would have in-person meetings, never meeting alone, but always with a co-handler present. They would decide on a safe place, choosing an area where the source did not live, and would meet in a car with tinted windows. They would move around constantly. When contacting a source by phone, different names would be used.

Sources were encouraged to delete text messages. [Text Omitted] own phone was a Halifax Regional Police phone [text omitted] had used for eleven years. [Text omitted] said it was locked at all times, password-protected, and [text omitted] did not leave it unattended. [ 32 ] [Text Omitted] was asked to discuss a time when a source’s identity was revealed, and [text omitted] indicated that this happened [text omitted]. [ 33 ] [Text omitted] testified that [text omitted]. [Text omitted]. [ 34 ] [Text Omitted] spoke with [text omitted] supervisor, Steve McCormick, and suggested that [text omitted] should meet with [text omitted]. [Text omitted] subsequently made a source pitch [text omitted].

At the hearing, [text omitted] described the process of developing a source, and the fact that most sources are involved in crime themselves.

If they were not, they would be unlikely to have information of value to the police. [ 35 ] [Text omitted] drove to [text omitted] and met with them on [text omitted]. [ 36 ] [Text omitted] said [text omitted] had contact with [text omitted]. [Text omitted] recalled at least one phone call, possibly two, and an agreement to meet [text omitted]. [Text omitted]. [Text omitted] did not recall all of the specifics, but [text omitted] was willing to meet [text omitted]. [ 37 ] [Text omitted] along with [text omitted], met with [text omitted].

They met [text omitted] at [text omitted]. [Text omitted] described [text omitted] demeanor as positive and non confrontational. [Text omitted] did not think [text omitted] was under the influence of drugs or alcohol. [Text omitted] described the conversation as a rapport building process. [Text omitted] went through a source pitch, describing ten or twelve aspects of being an informant. [Text omitted] told [text omitted] that [text omitted] would remain private, known only to [text omitted] and [text omitted], as well as Sgt. Steven Langille, who was in charge of the source program.

They spoke about the source assessment form, which is filed so that the source is designated by a number.

In the source notebook and source debriefing report only the number and not the person’s name is used. [ 38 ] [Text omitted] told [text omitted] that [text omitted] would have confidentiality. [Text omitted] would provide information to the police but would not testify in court. [Text omitted] would never be on documents and [text omitted] would not appear on a warrant or in the court process. [Text omitted] gave [text omitted] personal phone number, and told [text omitted] could contact [text omitted] at that number at any time. [ 39 ] [Text omitted] testified that [text omitted]was never assigned a number because of the limited time [text omitted] spent with [text omitted].

It would usually take a number of weeks between the time a source is pitched and a source number was generated. [Text omitted] described the process by which a source assessment form would be filled out and given to Sgt. Steve Langille. [Text omitted] said [text omitted] would not have completed a source assessment form if [text omitted] thought it was not a good fit with an individual.

Each time information was provided, [text omitted] would prepare a source briefing report in electronic form, including the source number and the information provided. [ 40 ] [Text omitted] said some source relationships are longer than others. The longest relationship [text omitted] had with a source was 11 or 12 years. [Text omitted] noted that it is sometimes important to evaluate the sincerity of the informant and to understand the motivations. [Text omitted] explained the process for paying sources, how that payment is provided, and discussed how common payment is.

A source request payment form is filled out before a source is paid. [ 41 ] [Text omitted] said the [text omitted] meeting, which lasted approximately 45 minutes, was positive, and [text omitted] believed that if [text omitted] contacted [text omitted] again [text omitted] would be receptive to becoming a source. [Text omitted] had an interaction with [text omitted] the next day, June 1, 2017. [ 42 ] Calvin Sparks had been stopped several days earlier, on May 27, 2017, because he was driving a vehicle that was suspected to be involved in a robbery. He was pulled over and charged with drug offences. Sgt.

Mirko Malkovich was assigned the file on June 1. The charges were not pursued. [ 43 ] [Text omitted]. [ 44 ] [Text omitted]. After that, [text omitted] provided information about [text omitted]. The identity of the person who provided the information was kept confidential. [ 45 ] [Text omitted] filled out a source debriefing report [text omitted](Exhibit VD4-1). There was no accompanying source number on that report. The source was listed as “new” since [text omitted]. This source report indicated that [text omitted].

The handler [text omitted], believed this information was reliable. [ 46 ] On [text omitted] met with [text omitted]. At that time, [text omitted] had been acting for a [text omitted]. [Text omitted] told [text omitted] that [text omitted] wanted to discuss being an agent. [Text omitted] could not recall how that meeting was set up, and noted that ultimately [text omitted] did not want to be an agent. [Text omitted] met [text omitted]. [Text omitted]. [Text omitted] did not handle agents, but agreed to discuss it.

However, [text omitted] concerned with asking whether [text omitted] had other sources giving [text omitted] information about [text omitted], and whether there was [text omitted]. [Text omitted], although there was no indication that [text omitted] had admitted to being a source or an informant. [Text omitted] concluded that [text omitted] was using [text omitted] to seek out information about what the police had in relation to [text omitted]. In essence, [text omitted] felt that [text omitted] was trying to use him as a source. [ 47 ] [Text omitted – whole paragraph].

[ 48 ] [Text omitted – whole paragraph]. [ 49 ] [Text omitted]. [Text omitted] seemed upset by this and said, “you put my life in danger by doing that.” [Text omitted] that nothing that [text omitted] was on the [text omitted]. [ 50 ] [Text omitted] was frustrated with the source relationship, as [text omitted] believed that [text omitted] and knew much more than [text omitted]. [Text omitted] was frustrated by [text omitted] lack of information. [Text omitted] was never paid as a source because [text omitted]. [Text omitted] testified that [text omitted] last interaction with [text omitted]. [Text Omitted – Second Witness] [ 51 ] [Text omitted] testified on October 28, 2019. [Text omitted] had been a member of the Halifax Regional Police since November 2006. [Text omitted] had worked with informers and sources, including [text omitted]. [Text omitted] had contact with [text omitted] on [text omitted]. [Text omitted] took no notes.

Two of these occasions were source meets, and the other was [text omitted]. [ 52 ] [Text omitted] said [text omitted] never communicated with [text omitted] through texts, calls, or messages, and [text omitted] never gave [text omitted] phone number. They only spoke on the three occasions in person, in the presence of [text omitted], including the meeting to introduce [text omitted] to source work, and the meeting at the [text omitted].

On that occasion, [text omitted] said, [text omitted] believed [text omitted] was fishing for information about what the police knew about [text omitted]. [Text omitted] never heard [text omitted] suggest that [text omitted] did not want to be an informant or that [text omitted] did not need confidentiality. Assessment [ 53 ] I find [text omitted] evidence reliable. It establishes that [text omitted] received insurances of confidentiality and expected [text omitted] identity and any information [text omitted] provided to be kept confidential.

It is clear that [text omitted] thought [text omitted] might be of value as a confidential source. The evidence also satisfies me that [text omitted] undertook the risk by providing information to [text omitted]. [Text omitted] reaction to [text omitted] brought into sharp focus [text omitted] concern about [text omitted] information being kept confidential. The interaction with [text omitted] was solicited by the police. The protection of informer privilege was explicitly extended and subsequently acted upon by [text omitted]. [Text omitted] guaranteed confidentiality to this informer. Informer privilege exists.

As discussed above, informer privilege does not end with the [text omitted] ( Anderson , supra ). [ 54 ] I therefore conclude that [text omitted] identity and the content of the information [text omitted] provided to police cannot be disclosed to anyone outside the circle of privilege, subject only to an innocence at stake exception being established. [ 55 ] As to waiver, the law (as discussed above) is clear that waiver belongs to both the Crown and the informant, neither of whom can waive the privilege unilaterally. Any waiver must be express and informed.

There is evidence that [text omitted] saw [text omitted]. We do not know the circumstances as to why [text omitted] did this and in what context. The evidence does not allow the conclusion that this amounted to a waiver. [ 56 ] [Text omitted] met with [text omitted] to provide information about the source program. [Text omitted] promised to provide confidentiality and informed [text omitted] of the distinction between acting as a source and an agent.

There is absolutely no evidence that [text omitted] went into the field so to speak, to assist with investigations. [Text omitted] told [text omitted] that [text omitted] name would never be on court documents or in disclosure. [Text omitted] would have an alias with officers. [Text omitted] could contact [text omitted] by way of telephone and [text omitted] promised to provide [text omitted] confidentiality. [Text omitted] knew the responsibility on [text omitted] not to disclose [text omitted] identity and [Text omitted] encouraged [text omitted] not to tell friends and family because [text omitted] could then be identified. [Text omitted] learned the fact [text omitted] was communicating with [text omitted] may have been discovered by, or disclosed to, [text omitted].

However, there is no evidence that the content of their communication was discovered by [text omitted]. [ 57 ] [Text omitted] was never paid for the source information [text omitted] provided, and never asked for renumeration.

This dovetails with the impression formed by [text omitted] that [text omitted] was trying to use [text omitted] to get information, for example, asking about a [text omitted]. [Text omitted] concern about the [text omitted] and it putting [text omitted] in danger dovetails with [text omitted] understanding that the information [text omitted] was giving was confidential. [Text omitted] reaction to the [text omitted] demonstrates subjectively that the information [text omitted] was providing was intended to be kept confidential.

While [text omitted] never said expressly that [text omitted] would be an informant, the fact that [text omitted], and [text omitted] reaction to the [text omitted], indicates that [text omitted] believed [text omitted] was a source providing information which was to be kept confidential. [ 58 ] Given the evidence, I find as fact initially, that [text omitted] was acting as a confidential informant. [Text omitted] met with [text omitted] several times. [Text omitted] provided reliable information with regards to the [text omitted].

The privilege arises when the police expressly or implicitly guarantee the prospective informer confidentiality in exchange for information. I find as fact that [text omitted] provided [text omitted] with that express guarantee. Innocence at Stake [ 59 ] On November 5, 2019, after the jury was selected, arguments were heard with regards to the innocence at stake exception to the privilege. On November 2, 2019, Mr. Jeffcock provided written submissions in relation to the second stage, that is, the issue of innocence at stake. The Crown filed written submissions on November 3, 2019.

The innocence at stake voir dire #5 was heard on November 5, 2019. Mr. Jeffcock conceded that it was a stretch to say that there were grounds to find innocence was at stake at this juncture. Based on the cases, the second stage usually would be heard at the end of the Crown’s case when a defendant would argue that their innocence is at stake without the information being disclosed. It was acknowledged that the accused could revisit the issue at a later stage. Mr. Jeffcock did not advance this argument on behalf of Calvin Sparks during the remainder of the trial. Conclusion

[ 60 ] I conclude that the Crown has established that [text omitted] privilege arises in relation to the information sought by Mr. Sparks, and there has been no waiver of the privilege. Brothers, J.