Named Person v. Vancouver Sun

Named Person v. Vancouver Sun
Collection
Supreme Court Judgments
Date
2007-10-11
Neutral citation
2007 SCC 43
Report
[2007] 3 SCR 253
Case number
30963
Judges
McLachlin, Beverley; Bastarache, Michel; Binnie, William Ian Corneil; LeBel, Louis; Deschamps, Marie; Fish, Morris J.; Abella, Rosalie Silberman; Charron, Louise; Rothstein, Marshall
On appeal from
British Columbia
Subjects
Courts
Notes
SCC Case Information: 30963
Decision Content
SUPREME COURT OF CANADA
Citation: Named Person v. Vancouver Sun, [2007] 3 S.C.R 253, 2007 SCC 43
Date: 20071011
Docket: 30963
Between:
Named Person and Attorney General of Canada on behalf of the Requesting State
Appellants
v.
The Vancouver Sun, The Province, BCTV, Canadian Broadcasting Corporation,
CKNW, CityTv and CTV, a Division of Bell Globemedia Inc.
Respondents
‑ and ‑
Attorney General of Ontario and Law Society of British Columbia
Interveners
Official English Translation: Reasons of LeBel J.
Coram: McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.
Reasons for Judgment:
(paras. 1 to 66):
Reasons dissenting in part:
(paras. 67 to 156)
Bastarache J. (McLachlin C.J. and Binnie, Deschamps, Fish, Abella, Charron and Rothstein JJ. concurring)
LeBel J.
______________________________
Named person v. Vancouver Sun, [2007] 3 S.C.R 253, 2007 SCC 43
Named Person and
Attorney General of Canada on behalf of the Requesting State Appellants
v.
The Vancouver Sun, The Province, BCTV,
Canadian Broadcasting Corporation, CKNW,
Citytv and CTV, a Division of Bell Globemedia Inc. Respondents
and
Attorney General of Ontario and
Law Society of British Columbia Interveners
Indexed: Named Person v. Vancouver Sun
Neutral citation: 2007 SCC 43.
File No.: 30963.
2007: April 24; 2007: October 11.
Present: McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.
on appeal from the supreme court of british columbia
Courts — Procedure — Informer privilege — In camera proceedings — Open court principle — Procedure to be followed where party claims to be confidential police informant — Whether extradition judge erred in interpreting and applying Dagenais/Mentuck test in context of claim of informer privilege — Whether judge erred in granting media counsel and representatives access, subject to confidentiality undertakings, to information over which informer privilege was being asserted.
The appellant Named Person informed the judge, during an in camera portion of extradition proceedings, that he was a confidential police informer, and on that basis requested some disclosure from the appellant Attorney General, who was acting on behalf of the state requesting the Named Person’s extradition. The judge asked the parties for submissions as to whether the proceedings ought to remain in camera and sought the assistance of an amicus curiae. On the basis of the latter’s submissions, the judge sent a letter to a number of counsel who act for certain media groups, requesting that they attend a hearing on a specified date having filed undertakings of confidentiality and undertakings not to disclose anything learned at the hearing to their clients. A number of counsel for media groups, including the respondents, attended at that hearing.
At a subsequent hearing, the respondents applied for an order that they be allowed to review the documents prepared by the amicus curiae upon filing undertakings of non‑disclosure. The judge allowed the application and ordered that counsel for the respondents as well as specific representatives of each respondent be allowed to review the amicus documents on each individual filing an undertaking of confidentiality. The Named Person and the Attorney General appealed that order to this Court.
Held (LeBel J. dissenting in part): The appeal should be allowed and the extradition judge’s order set aside.
Per McLachlin C.J. and Bastarache, Binnie, Deschamps, Fish, Abella, Charron and Rothstein JJ.: The law has long recognized that those who choose to act as confidential police informers must be protected from the possibility of retribution. The law’s protection has been provided in the form of the informer privilege rule, which protects from revelation in public or in court the identity of those who give information to the police in confidence. This protection in turn encourages cooperation with the police for future potential informers. This general protection is so important that it renders informer privilege a matter beyond the discretion of a trial judge. 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 privilege is permitted. All information which might tend to identify the informer is protected by the privilege, and neither the Crown nor the court has any discretion to disclose this information in any proceeding, at any time. [16] [19] [30]
While open courts are undoubtedly a vital part of our legal system and of our society, their openness cannot be allowed to fundamentally compromise the criminal justice system. Dagenais/Mentuck, insofar as that line of cases now represents a “test” for the application of the open court principle in discretionary action by courts, does not apply here since the informer privilege rule allows the trial judge no discretion. An informer must simply indicate that it is necessary to proceed in camera. No reasons need be given at this point because the basis of the informer status is the very issue to be examined in camera at the first stage. In more practical terms, this will mean that a trial judge must have the authority to hold an entire proceeding in camera if informer privilege is found to be present; however, an entirely in camera proceeding should be seen as a last resort. A judge ought to make every effort to ensure that as much information as possible is made public, and that disclosure and publication are restricted only for that information which might tend to reveal the informer’s identity. [4] [37] [40-42]
Here, the extradition judge erred insofar as the decisions made at several steps were not consistent with the proper approach. The appointment of the amicus curiae was not warranted, because the determination of the proper legal test that applied was the judge’s responsibility. Moreover, the decision to reveal to the amicus detailed facts about the Named Person was inconsistent with the extradition judge’s obligation to protect the information which was covered by informer privilege and with the particular mandate given. A second mistake made by the extradition judge was in giving notice to the media counsel. This practice cannot be supported, as it privileged unfairly and arbitrarily certain members of the media on the basis of the views of the judge or the amicus. A third error was the extradition judge’s handling of the material covered by informer privilege. The judge should have proceeded by determining in camera, without the media, on the facts presented by the Named Person and the Attorney General, whether or not the informer privilege properly applied. As an informer, the Named Person was absolutely protected by the informer privilege. In particular, he did not waive the privilege by coming forward to rely on it. The media were not entitled to any of the privileged material at any time, and ought to have been given only limited non‑identifying materials in order to make their submissions at the second stage, after the existence of the privilege had been accepted. [62-65]
Per LeBel J. (dissenting in part): Two principles stand in opposition in this case: the open court principle and the rule of confidentiality made necessary by informer privilege. The relationship between this privilege and a justice system that is, in principle, open requires certain adjustments, since a simple assertion that the rule of confidentiality flowing from the privilege is absolute does not suffice either to guide or to settle the debate in all circumstances. It is therefore necessary, at the very least, to discuss the conditions and procedures that will govern the review of the privilege and incorporate this review into the broader legal debate. At times, consideration of the limits of the privilege, and its extinguishment, will be required. If a meaningful debate is to take place and if the applicable constitutional principles are to be adhered to, the trial judge must be found to have a residual discretion to order the disclosure, even in open court, of information on the factual background to the case. A fortiori, to this end, the judge retains the discretion to authorize or order the disclosure of information that might tend to identify a police informer to parties with an interest in the issue of the openness of court proceedings, while taking any precautions needed to prevent or limit further dissemination of this information. [79-80]
The open court principle, which was accepted long before the adoption of the Canadian Charter of Rights and Freedoms , is now enshrined in it. This is due to the fact that the principle is associated with the right to freedom of expression. Members of the public must have access to the courts in order to freely express their views on the operation of the courts and on the matters argued before them, and the right to freedom of expression guaranteed by s. 2 (b) of the Charter protects not only the right to express oneself on an issue, but also the right to gather the information needed to engage in expressive activity. The open court principle also has as a corollary the right of the press to have access to the courts and publish information on their operation. This principle is not absolute, however. Informer privilege constitutes a limit on the open court principle but, like any other rule, this privilege has its exceptions, and these exceptions are not limited to situations where accused persons could be prevented from proving their innocence. It is more consistent with the logic of the common law and with the values of the Charter to hold that the trial judge always has the discretion (except where the law withdraws it) to authorize or order the disclosure of information that might tend to identify an informer in the rare cases where the judge is satisfied that disclosure of the information would better serve the interests of justice than keeping it secret. [88-89] [91] [100] [103] [105]
Here, the issues relating to the Named Person’s status as a police informer are not incidental to the legal proceedings, as is generally the case. On the contrary, they are at the very heart of the Named Person’s applications. Furthermore, the stay of proceedings application the Named Person ultimately intends to make should relate to how the foreign and Canadian governments treated him as an informer. This is the very type of legal proceeding in which the open court principle assumes particular importance. How the Canadian government deals with informers can be of considerable significance in a democratic debate on the values of this country’s justice system and on the proper administration of justice. The rule of informer privilege cannot deprive a trial judge of the discretion to consider whether the rule is applicable. In classic fact situations, the application of the rule will appear to be absolute. In certain exceptional circumstances, however, it will be more difficult to establish the scope of the privilege and an adversarial proceeding will be necessary. This will be true, for example, where, as appears to be the case here, the judge must consider the possibility that the privilege is being abused or is being diverted from its purpose. As a result of the constitutional status of the open court principle, anyone who relies on informer privilege to limit the scope of the principle bears the onus of showing that his or her case is indeed one in which the privilege should be applied and that the objectives of the privilege can be attained by no means less intrusive than applying it absolutely. In considering this issue, the trial judge may ask to hear the parties’ arguments in an adversarial proceeding and make any orders he or she deems necessary to enable those with an interest in the matter to make a meaningful contribution to the proceeding. This was what the extradition judge in the case at bar intended when he ordered the disclosure of all the evidence in the record to media counsel and to certain representatives of the media. [68] [106] [109]
The decision to order the disclosure of the documents in issue to media counsel was within the extradition judge’s authority and was discretionary in nature. According to the standard of review applicable to this type of decision, the Court will be justified in intervening only if the judge misdirects him or herself or if the decision is so clearly wrong as to amount to an injustice. In the instant case, a series of factors provided ample justification for the extradition judge’s decision to conduct an adversarial proceeding to determine whether this was a case in which information that might tend to identify a police informer should be disclosed in open court. He also correctly exercised his discretion in ordering the disclosure to media counsel of certain information that might tend to identify the Named Person so that they could make a meaningful contribution to the proceeding. The extradition judge considered the fact that this is a case in which there has already been unusually wide disclosure of the Named Person’s identity and in which the Named Person’s co‑conspirator is aware of his identity. The judge also seems to have feared that the government was attempting to divert informer privilege from its real purpose. Finally, he appears to have felt that the very nature of the stay of proceedings application favoured hearing it in open court, and also seems to have attached great weight to the fact that disclosure of the documents in issue to lawyers, after they had given appropriate undertakings of confidentiality, would probably not result in any additional risk to the Named Person. There is accordingly no basis for finding that the extradition judge misdirected himself or that his decision is so clearly wrong as to amount to an injustice. As for the extradition judge’s decision to allow media counsel to share any information disclosed to them with their clients, but only under strict conditions and after each of the media representatives had given an undertaking of confidentiality, it was also within the ambit of his discretion and there is no basis for this Court to intervene. This decision was based on undertakings by the media representatives and on an accurate understanding of the relationship between them and their counsel. However, the extradition judge went too far in ordering that the entire record be disclosed to media lawyers and representatives. The sole purpose of this disclosure is to ensure that the adversarial proceeding is helpful. Consequently, the judge should have screened and expurgated the documents in issue to remove information that might tend to identify the Named Person but is not relevant to the specific proceeding. [123-126] [128-133] [137]
Finally, the extradition judge was entitled to select the media counsel he wanted to invite to take part in the proceeding on the in camera application. As a superior court judge, he has the power to regulate the course of the extradition hearing in any way that appears to him to be consistent with the Criminal Code and the Extradition Act . This power includes the power to invite interested parties to take part in proceedings incidental to the extradition request. The judge has some leeway as regards the conditions of this invitation, provided that these conditions facilitate the conduct of the hearing. Likewise, it was open to him to appoint an amicus curiae to assist him with the analysis of both the facts and the applicable law. [152] [155]
Accordingly, the order should be set aside and the case remanded to the extradition judge to decide what information may be disclosed to media counsel and the media representatives. [156]
Cases Cited
By Bastarache J.
Applied: R. v. Leipert, [1997] 1 S.C.R. 281; Bisaillon v. Keable, [1983] 2 S.C.R. 60; approved: R. v. Dell (2005), 194 C.C.C. (3d) 321; distinguished: Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; R. v. Mentuck, [2001] 3 S.C.R. 442, 2001 SCC 76; referred to: R. v. Hunter (1987), 57 C.R. (3d) 1; Powell v. Chief Constable of North Wales Constabulary, [1999] E.W.J. No. 6844 (QL); Savage v. Chief Constable of Hampshire, [1997] 1 W.L.R. 1061; R. v. Brown, [2002] 2 S.C.R. 185, 2002 SCC 32; R. v. Stinchcombe, [1991] 3 S.C.R. 326; R. v. Scott, [1990] 3 S.C.R. 979; R. v. Davies (1982), 1 C.C.C. (3d) 299; Vancouver Sun (Re), [2004] 2 S.C.R. 332, 2004 SCC 43; Scott v. Scott, [1913] A.C. 417; Ambard v. Attorney‑General for Trinidad and Tobago, [1936] A.C. 322; Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480; Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; Nixon v. Warner Communications, Inc., 435 U.S. 589 (1978); Ruby v. Canada (Solicitor General), [2002] 4 S.C.R. 3, 2002 SCC 75; R. v. Oakes, [1986] 1 S.C.R. 103.
By LeBel J. (dissenting in part)
Toronto Star Newspapers Ltd. v. Ontario, [2005] 2 S.C.R. 188, 2005 SCC 41; Vancouver Sun (Re), [2004] 2 S.C.R. 332, 2004 SCC 43; Sierra Club of Canada v. Canada (Minister of Finance), [2002] 2 S.C.R. 522, 2002 SCC 41; R. v. Mentuck, [2001] 3 S.C.R. 442, 2001 SCC 76; R. v. O.N.E., [2001] 3 S.C.R. 478, 2001 SCC 77; Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; Canadian Newspapers Co. v. Canada (Attorney General), [1988] 2 S.C.R. 122; R. v. Oakes, [1986] 1 S.C.R. 103; R. v. Lawrence, [2001] O.J. No. 5776 (QL); R. v. Hunter (1987), 57 C.R. (3d) 1; R. v. Leipert, [1997] 1 S.C.R. 281; R. v. Scott, [1990] 3 S.C.R. 979; Bisaillon v. Keable, [1983] 2 S.C.R. 60; R. v. Hiscock (1992), 72 C.C.C. (3d) 303; Babcock v. Canada (Attorney General), [2002] 3 S.C.R. 3, 2002 SCC 57; Roviaro v. United States, 353 U.S. 53 (1957); R. v. Salituro, [1991] 3 S.C.R. 654; R.W.D.S.U., Local 558 v. Pepsi‑Cola Canada Beverages (West) Ltd., [2002] 1 S.C.R. 156, 2002 SCC 8; Elsom v. Elsom, [1989] 1 S.C.R. 1367; R. v. Regan, [2002] 1 S.C.R. 297, 2002 SCC 12; Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391; R. v. Carosella, [1997] 1 S.C.R. 80; Reza v. Canada, [1994] 2 S.C.R. 394; Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3; Strother v. 3464920 Canada Inc., [2007] 2 S.C.R. 177, 2007 SCC 24; R. v. Henry (1990), 61 C.C.C. (3d) 455; Spector v. Ageda, [1971] 3 All E.R. 417; R. v. Guess (2000), 148 C.C.C. (3d) 321; Orfus Realty v. D.G. Jewellery of Canada Ltd. (1995), 24 O.R. (3d) 379; Reference re Secession of Quebec, [1998] 2 S.C.R. 217; Cooper v. Canada (Human Rights Commission), [1996] 3 S.C.R. 854; Miron v. Trudel, [1995] 2 S.C.R. 418; Canadian Pacific Air Lines Ltd. v. Canadian Air Line Pilots Assn., [1993] 3 S.C.R 724.
Statutes and Regulations Cited
Canada Evidence Act, R.S.C. 1985, c. C‑5, s. 39(1) , (2) .
Canadian Charter of Rights and Freedoms, ss. 1 , 2 (b), 8 , 11 (d), 24(2) .
Criminal Code, R.S.C. 1985, c. C‑46, ss. 486(1) , 537(1) (i).
Extradition Act, S.C. 1999, c. 18, s. 24 .
Ontario Court of Justice Criminal Proceedings Rules, SI/92‑99, r. 6.04(1).
Authors Cited
Bentham, Jeremy. Treatise on Judicial Evidence. London: J. W. Paget, 1825.
Blackstone, William. Commentaries on the Laws of England, vol. III. Oxford: Clarendon Press, 1768.
Burton, John Hill, ed. Benthamiana: or, Select Extracts from the Works of Jeremy Bentham, With an Outline of His Opinions on the Principal Subjects Discussed in His Works. Edinburgh: William Tait, 1843.
Canada. Law Reform Commission. Working Paper 56. Public and Media Access to the Criminal Process. Ottawa: The Commission, 1987.
Cooper, Terrance Gilmour. Crown Privilege. Aurora, Ont.: Canada Law Book, 1990.
Eagles, Ian. “Evidentiary Protection for Informers — Policy or Privilege?” (1982), 6 Crim. L.J. 175.
Hubbard, Robert W., Susan Magotiaux and Suzanne M. Duncan. The Law of Privilege in Canada. Aurora, Ont.: Canada Law Book, 2006 (loose-leaf updated 2007, release 3).
MacKenzie, Gavin. Lawyers and Ethics: Professional Responsibility and Discipline, 4th ed. Toronto: Thomson, 2006.
Paciocco, David M., and Lee Stuesser. The Law of Evidence, 4th ed. Toronto: Irwin Law, 2005.
Sopinka, John, Sidney N. Lederman and Alan W. Bryant. The Law of Evidence in Canada, 2nd ed. Toronto: Butterworths, 1999.
Wigmore, John Henry. Evidence in Trials at Common Law, vol. 6. Revised by James H. Chadbourn. Boston: Little, Brown & Co., 1976.
Wigmore, John Henry. Evidence in Trials at Common Law, vol. 8. Revised by John T. McNaughton. Boston: Little, Brown & Co., 1961.
APPEAL from a judgment of the Supreme Court of British Columbia, [2006] B.C.J. No. 3122 (QL), 2006 BCSC 1805, allowing an application for disclosure of relevant information and documentation to the counsel and representatives of the respondents. Appeal allowed, LeBel J. dissenting in part.
Ian Donaldson, Q.C., for the appellant Named Person.
Bernard Laprade and Cheryl D. Mitchell, for the appellant the Attorney General of Canada.
Robert S. Anderson and Ludmila B. Herbst, for the respondents The Vancouver Sun, The Province and BCTV.
Daniel W. Burnett and Heather E. Maconachie, for the respondent the Canadian Broadcasting Corporation.
Michael A. Skene and Angus M. Gunn, Jr., for the respondent CTV, a Division of Bell Globemedia Inc.
No one appeared for the respondents CKNW and Citytv.
Christopher Webb, for the intervener the Attorney General of Ontario.
Leonard T. Doust, Q.C., and Michael A. Feder, for the intervener the Law Society of British Columbia.
The judgment of McLachlin C.J. and Bastarache, Binnie, Deschamps, Fish, Abella, Charron and Rothstein JJ. was delivered by
Bastarache J. —
I. Introduction
1 Information is at the heart of any legal system. Police investigate crimes and act on the information they acquire; lawyers and witnesses present information to courts; juries and judges make decisions based on that information; and those decisions, reported by the popular and legal press, make up the basis of the law in future cases. In Canada, as in any truly democratic society, the courts are expected to be open, and information is expected to be available to the public. However, from time to time, the safety or privacy interests of individuals or groups and the preservation of the legal system as a whole require that some information be kept secret.
2 This case is about a conflict between two principles, each vital to Canadian law, which pull in fundamentally opposite directions vis-à-vis the treatment of information in our legal system. On the one hand is the open court principle, which, as has been repeatedly recognized by this Court, provides that court proceedings should presumptively be a matter of public record. On the other hand lies informer privilege, an age-old privilege according to which the identity of a confidential informer cannot be exposed under any but the narrowest of exceptions.
3 In this case, the appellant, whose name cannot be disclosed, informed the extradition judge (who, along with the Named Person, is referred to in the masculine), during an in camera portion of the extradition proceedings, that he was a confidential police informer, and on that basis requested some disclosure from the appellant Attorney General of Canada, who was acting in the extradition proceeding on behalf of the state requesting the Named Person’s extradition. Upon learning of the existence of these extradition proceedings, the respondents claimed a right to publicize details of the proceedings and to have access to information alleged to be protected by informer privilege.
4 The question posed to this Court is how to satisfy the interests which underlie the Named Person’s privilege in light of the interests which underlie the open court principle on the basis of which the respondents claim a right to publish details of the proceedings. In my view, informer privilege must remain absolute. Information which might tend to identify a confidential informant cannot be revealed, except where the innocence of a criminal accused is at stake. Open courts are undoubtedly a vital part of our legal system and of our society, but their openness cannot be allowed to fundamentally compromise the criminal justice system. The appeal should therefore be allowed.
II. Judicial History
5 This appeal is from an order made in the course of an extradition hearing before a judge of the Supreme Court of British Columbia, sitting as an extradition judge (the “extradition judge”). (The facts are taken, except where noted otherwise, from the Statement of Non-Identifying Facts, found in the public file at A.R., at pp. 105-9.) The appellant Named Person was the subject of the extradition hearing, having been charged with an offence in the requesting state. The appellant Attorney General of Canada was a party to the extradition hearing, acting on behalf of the requesting state.
6 At some point during the hearing, the Named Person applied for an order that the proceedings continue in camera. The Attorney General consented and the extradition judge allowed the application.
7 While the proceedings were taking place in camera, the Named Person made it known that he wished to apply for a stay of his extradition on the grounds that his rights under the Canadian Charter of Rights and Freedoms had been breached. In support of the application for a stay, the Named Person disclosed to the extradition judge that he was a confidential police informer who had provided information to the authorities (either in Canada or the requesting state). In addition, the Named Person told the extradition judge that he had been charged with criminal offences in the requesting state and that his confidential informer status had been breached in the requesting state by way of disclosure of that status to a co-conspirator who had in turn provided more information implicating the Named Person which had resulted in the extradition request.
8 While the proceedings were still in camera, the extradition judge asked the parties for submissions as to whether the proceedings ought to remain in camera. Both the Attorney General and the Named Person submitted that they should.
9 The extradition judge then sought the assistance of an amicus curiae on the following issues:
(1) The public interest and policy considerations which would favour an open court hearing of these issues notwithstanding the risks associated with that open process;
(2) The extent to which counsel for the press should be entitled to address these in camera issues and if so, the measures that could be put in place to protect [the Named Person’s] interest;
(3) The possibility of other means of protecting the interests of [the Named Person], including through publication bans but considering also their potential utility and risks; and
(4) If these proceedings continue in camera, the manner by which the Court may render judgments on [the Named Person’s] disclosure application and ultimately on [his] stay of proceedings application without exposing [the Named Person] to unacceptable risk but at the same time sufficiently informing the public of the issues and providing a proper judicial record both for potential appeal and for consideration by the Minister if extradition is ultimately ordered.
([2006] B.C.J. No. 3122 (QL), 2006 BCSC 1805, at para. 25)
The amicus was provided with all the exhibits and documents which were before the court, as well as with transcripts of all the in camera proceedings. The amicus then made submissions to the extradition judge. In summary, his assessment was that:
(1) issues concerning the extent to which these proceedings should remain in camera would be most appropriately and effectively addressed by adversarial argument provided proper safeguards could be put in place to protect the identity of the Named Person pending determination of the issues through the adversarial process; and
(2) since amicus curiae could not take an adversarial position he recommended that notice of the in camera proceedings should be given to those media counsel who had been known to represent local and national media outlets in past judicial proceedings in British Columbia involving publication bans on appropriate undertakings and orders to protect the Named Person’s interests. [para. 27]
10 On the basis of the amicus’ submissions, the extradition judge sent a letter to a number of counsel who act for certain media groups, requesting that they attend a hearing on a specified date having filed undertakings of confidentiality and non-disclosure to their clients of anything learned at the hearing. A number of counsel for media groups — including counsel for all the respondents in this appeal — attended at that hearing. The extradition judge then directed that another hearing would take place in which the judge would entertain submissions on “in camera issues” (para. 28), and on how the protection of the privilege could or should be balanced against the media’s and the public’s interest in publicizing the proceedings. Notwithstanding forceful opposition from the counsel of both appellants, the extradition judge allowed the media counsel to report the details of the hearing to their clients but imposed a limited publication ban on the proceedings.
11 At the next hearing, the extradition judge heard submissions from the Attorney General, the Named Person, and the respondents on the scope of the claimed privilege. The extradition judge determined that “the informant privilege rule does not act as a bar to proceeding otherwise than in camera” (para. 48) and that the issue of whether or not to proceed in camera “must be decided in accordance with the principles established in Dagenais, Mentuck and Re Vancouver Sun” (para. 48). The extradition judge permitted the media to publish the fact that the court had heard the matter in camera and that the court had determined that further in camera proceedings were needed.
12 The extradition judge then heard submissions regarding the materials that would be disclosed to counsel for the respondents, and to specific representatives of the respondents on an interim basis to allow the respondents to instruct their counsel regarding their submissions on the applicability of the Dagenais/Mentuck test and whether that test required that the Named Person’s extradition proceedings be held in camera. The respondents also applied for an order that they be allowed to review the documents prepared by the amicus curiae upon filing undertakings of non-disclosure.
13 The extradition judge allowed this application and ordered that counsel for the respondents as well as specific representatives of each respondent be allowed to review the amicus documents on each individual filing an undertaking of confidentiality.
14 It is this order, currently stayed, that the appellants contest in this Court.
III. Analysis
15 At stake here are two important principles which seem fundamentally opposed. The principle of informer privilege provides an all but absolute bar against revealing any information which might tend to identify a confidential informer. The open court principle, on the other hand, provides that information which is before a court ought to be public information to the extent possible. How are these two principles to be reconciled? In order to answer this question, I will examine each of them in turn. The result of this exercise will be a model procedure to guide judges in similar situations.
A. Informer Privilege
16 Police work, and the criminal justice system as a whole, depend to some degree on the work of confidential informers. The law has therefore long recognized that those who choose to act as confidential informers must be protected from the possibility of retribution. The law’s protection has been provided in the form of the informer privilege rule, which protects from revelation in public or in court of the identity of those who give information related to criminal matters in confidence. This protection in turn encourages cooperation with the criminal justice system for future potential informers.
17 A useful summary of the rule was set out by Cory J.A. (as he then was) in his decision in R. v. Hunter (1987), 57 C.R. (3d) 1 (Ont. C.A.), at pp. 5-6, and adopted by McLachlin J. (as she then was) in her reasons in this Court’s decision in R. v. Leipert, [1997] 1 S.C.R. 281, at para. 9:
The rule against the non-disclosure of information which might identify an informer is one of long standing. It developed from an acceptance 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 also obvious to the courts from very early times that the identity of an informer would have to be concealed, both for his or her own protection and to encourage others to divulge to the authorities any information pertaining to crimes. It was in order to achieve these goals that the rule was developed. [Emphasis added.]
18 This passage usefully recognizes the dual objectives which underlie the informer privilege rule. Not only does the ban on revealing the informer’s identity protect that informer from possible retribution, it also sends a signal to potential informers that their identity, too, will be protected. Without taking away from the particular protection afforded by the rule to an individual informer in a given case, we must emphasize the general protection afforded by the rule to all informers, past and present.
19 This general protection is so important that it renders informer privilege a matter beyond the discretion of a trial judge. As McLachlin J. wrote in Leipert at para. 12:
Informer privilege is of such importance that once found, courts are not entitled to balance the benefit enuring from the privilege against countervailing considerations . . . . [Emphasis added.]
20 To similar effect was the Court’s finding in Bisaillon v. Keable, [1983] 2 S.C.R. 60, at p. 93, that the application of the rule “does not depend on the judge’s discretion, as it is a legal rule of public order by which the judge is bound”.
21 Thus a court does not have any discretion with regard to the privilege; a court is under a duty to protect the informer’s identity. Indeed, the duty of a court not to breach the privilege is of the same nature as the duty of the police or the Crown.
22 It deserves emphasizing here that the rationale for the privilege’s existence is not something that allows for weighing on a case-by-case basis the maintenance or scope of the privilege depending on what risks the informer might face. Informer privilege is a class privilege that always applies when it has been established that a confidential informer is present.
23 Once it has been established that the privilege exists, the court is bound to apply the rule. It is the non-discretionary nature of the informer privilege rule which explains that the rule is referred to as “absolute”: see R. W. Hubbard, S. Magotiaux and S. M. Duncan, The Law of Privilege in Canada (loose-leaf), at p. 2-7. The Crown has a similar obligation: the privilege is “owned” by both the Crown and the informer himself, so the Crown has no right to disclose the informer’s identity: Leipert, at para. 15.
24 This is a highly exceptional case. Usually, the informer is not a party to the proceedings, nor is he or she going to be a witness. The Crown will not be presenting his or her evidence. The confidential information is used by the police in its investigation, leading to evidence that will be presented in the usual way. The question of informer privilege is more likely to arise indirectly at trial, as when counsel seeks to cross-examine a Crown witness on whether he or she is or has been a confidential informer, or when a police officer is questioned on what led him or her to take a certain step and the officer invokes the informer privilege. Where such an informer reveals his or her identity, this would normally signify that he or she desires to waive the privilege. This could not have been the case in the present context however. Here, the Named Person came forth for the very purpose of enforcing the confidential informer agreement. The extradition judge was wrong in finding that the Named Person compromised the privilege by revealing his status. The extradition judge’s decision on waiver is possibly due to the unusual circumstances of this case and the absence of clear precedent to provide guidance.
25 Moreover, the informer himself or herself cannot unilaterally decide to “waive” the privilege. The authors of The Law of Evidence in Canada write, at p. 883, that “[t]he privilege belongs to both the Crown and the informer and thus the informer alone cannot ‘waive’ the privilege and neither can a party in a civil proceeding”: J. Sopinka, S. N. Lederman and A. W. Bryant, The Law of Evidence in Canada (2nd ed. 1999) (emphasis in original). Courts in the United Kingdom have found that a court may refuse to disclose an informer’s identity even if he or she has explicitly requested disclosure: see Powell v. Chief Constable of North Wales Constabulary, [1999] E.W.J. No. 6844 (QL) (C.A.), and Savage v. Chief Constable of Hampshire, [1997] 1 W.L.R. 1061 (C.A.).
26 In addition to its absolute non-discretionary nature, the rule is extremely broad in its application. The rule applies to the identity of every informer: it applies where the informer is not present, where the informer is present, and even where the informer himself or herself is a witness. It applies to both documentary evidence and oral testimony: Sopinka, Lederman and Bryant, at pp. 882-83. It applies in criminal and civil trials. The duty imposed to keep an informer’s identity confidential applies to the police, to the Crown, to attorneys and to judges: Hubbard, Magotiaux and Duncan, at p. 2-2. The rule’s protection is also broad in its coverage. Any information which might tend to identify an informer is protected by the privilege. Thus the protection is not limited simply to the informer’s name, but extends to any information that might lead to identification.
27 The informer privilege rule admits but one exception: it can be abridged if necessary to establish innocence in a criminal trial (there are no exceptions to the rule in civil proceedings). According to the innocence at stake exception, “there must be a basis on the evidence for concluding that disclosure of the informer’s identity is necessary to demonstrate the innocence of the accused”: Leipert, at para. 21. It stands to be emphasized that the exception will apply only if there is an evidentiary basis for the conclusion; mere speculation will not suffice: Sopinka, Lederman and Bryant, at p. 884. The exception applies only where disclosure of the informer’s identity is the only way that the accused can establish innocence: R. v. Brown, [2002] 2 S.C.R. 185, 2002 SCC 32, at para. 4.
28 In this Court’s decision in Leipert, it was clearly established that innocence at stake is the only exception to the informer privilege rule. The rule does not allow an exception for the right to make full answer and defence. Nor does the rule al