R. v. Named Person B

R. v. Named Person B
Collection
Supreme Court Judgments
Date
2013-02-22
Neutral citation
2013 SCC 9
Report
[2013] 1 SCR 405
Case number
34053
Judges
McLachlin, Beverley; LeBel, Louis; Fish, Morris J.; Abella, Rosalie Silberman; Rothstein, Marshall; Cromwell, Thomas Albert; Moldaver, Michael J.; Karakatsanis, Andromache
On appeal from
Quebec
Subjects
Criminal law
Notes
SCC Case Information: 34053
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. Named Person B, 2013 SCC 9, [2013] 1 S.C.R. 405
Date: 20130222
Docket: 34053
Between:
Named Person B
Appellant
and
Her Majesty The Queen
Respondent
- and -
Jacqueline Benoît, Raymond Bouchard, Denis Corriveau, Marcel Demers,
Raymond Desfossés, Gilles Dubois, Frédéric Faucher, Jean-Claude Gagné,
Denis Gaudreault and Gérard Hubert
Others
and
Director of Public Prosecutions, Attorney General of Ontario and
Criminal Lawyers’ Association (Ontario)
Interveners
Notice:
On January 24 and December 20, 2011, the Court issued orders sealing the record in the matter of Named Person B v. Her Majesty the Queen (34053) and banning the publication of any information within the sealed record.
The reasons for judgment are not subject to these orders.
Coram: McLachlin C.J. and LeBel, Deschamps,* Fish, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis JJ.
Reasons for Judgment:
(paras. 1 to 49)
Dissenting Reasons:
(paras. 50 to 153)
Abella J. (McLachlin C.J. and LeBel, Fish, Moldaver and Karakatsanis JJ. concurring)
Cromwell J. (Rothstein J. concurring)
R. v. Named Person B, 2013 SCC 9, [2013] 1 S.C.R. 405
Named Person B Appellant
v.
Her Majesty The Queen Respondent
and
Jacqueline Benoît, Raymond Bouchard,
Denis Corriveau, Marcel Demers,
Raymond Desfossés, Gilles Dubois,
Frédéric Faucher, Jean‑Claude Gagné,
Denis Gaudreault and Gérard Hubert Others
and
Director of Public Prosecutions,
Attorney General of Ontario and
Criminal Lawyers’ Association (Ontario) Interveners
Indexed as: R. v. Named Person B
2013 SCC 9
File No.: 34053.
2012: April 11; 2013: February 22.
Present: McLachlin C.J. and LeBel, Deschamps,* Fish, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis JJ.
on appeal from the superior court of québec
Criminal law — Evidence — Informer privilege — Individual with informer privilege with one police force providing information relating to himself and others to second police force — Whether individual has status of police informer with second police force — Whether implicit promise of confidentiality by second police force exists as result of nexus between two police forces.
B approached a first police force to give information about violent crimes and was promised confidentiality by that police force. Two days later, the first police force transferred B and the information he had provided to the Sûreté du Québec (“SQ”). Over the next five years, B continued to cooperate with the SQ and to give information about serious crimes. At the end of that period, the Crown ordered the SQ to redact B’s name and any information that could identify him from all documents and to put those documents under seal. It also brought an application to determine if B benefitted from police informer privilege with the SQ. The application judge found that B did not have informer status.
Held (Rothstein and Cromwell JJ. dissenting): The appeal is allowed and the matter remitted for reconsideration.
Per McLachlin C.J. and LeBel, Fish, Abella, Moldaver and Karakatsanis JJ.: While the application judge recognized that a promise of confidentiality could be either explicit or implicit, he undertook no analysis into whether an implicit promise could have been inferred. In particular, the application judge failed to make any findings about whether B’s transfer from the first police force to the SQ, the relationship between the two police forces, and the similarities in B’s relationships with both, could have led someone in B’s position to believe, on reasonable grounds, that the status he had with the first police force would continue with the second.
The possibility of an implied promise of confidentiality emerges from this record based on the nexus between the first police force and the SQ and the SQ’s failure to clarify to B what his status was. B’s interactions with the SQ originated in his relationship as a confidential informant with the first police force and the two police forces cooperated in handling B over the following years. In addition, the evidence is undisputed that no one ever told B that he ceased to be a confidential informant when he was transferred to the SQ, even though it is also undisputed that he repeatedly asked the SQ to clarify his status.
B approached the first police force to provide information about violent crimes. He was promised informer privilege with respect to the information that he provided to that force. In its investigations, the SQ used confidential information B had given to the first police force prior to the SQ’s involvement.
Based on B’s information, the two police forces worked together and dealt with B interchangeably. An SQ officer acknowledged that the first police force and the SQ were effectively operating together in respect of an investigation that developed around B’s information. This interconnection is also reflected in a letter sent by an officer of the first police force, which acknowledges B’s confidentiality with the first force and implies that that force believed that B had a similar status with the SQ.
In addition to the temporal and operational nexus between the two forces, B insistently asked what his status was and never received a clear answer. This may well have led someone in B’s position to reasonably believe that his identity would be protected. While the SQ officers were adamant that they did not think of B as an informer, they do not appear to have shared this view with B. B was promised confidentiality by the first police force because his cooperation put his life at risk. The risk did not change when he was transferred to the SQ two days later and there is no doubt that the SQ knew of B’s protected status with the first police force. At the very least, the SQ sent mixed signals to B concerning the confidentiality of his statements. The net effect of these mixed signals from the SQ on B’s reasonable expectation of confidentiality must be decided at a new hearing.
The fact that one police force has granted informer status to an individual is not, on its own, a sufficient basis for a claim of informer privilege with another police force. However, given the nexus between the forces in handling B, and given the essential continuity of B’s relationship with both, B may well have had reasonable grounds to believe that the protection promised by the first police force would continue with the ongoing flow of information that he was providing to the SQ.
Per Rothstein and Cromwell JJ. (dissenting): To decide this case, the concrete realities of it and the limits of appellate review must first be assessed. The realities are that the application judge expressly rejected B’s evidence that his status as a confidential police informer was ever promised or even discussed. He further found that the police had done nothing that would permit B to understand that he was to become a confidential police informer. While it may in some rare cases be theoretically possible for a person to be both a Crown witness and a confidential police informer, it was not possible in B’s situation. The application judge recognized this as does B’s own counsel before this Court. The fact that the police have an obligation to protect a person has nothing to do with whether that person is a confidential police informer. Thus, there is nothing inconsistent with the police position that, on the one hand, they felt obliged to protect B and on the other, that B was not a confidential police informer.
Any implication that B inquired about his status as a police informer and was not given a straight answer is not supported by either the application judge’s findings or by this record. In fact, the officers who testified on this issue repeatedly asserted that a conversation about B’s status as a source or confidential informer simply never occurred. Indeed, none of the officers involved failed to give B a straight answer about whether he was a confidential source because there were no such discussions.
It is not open to an appellate court to reweigh the evidence in the record or to draw inferences from the evidence, which the application judge refused to draw, absent some clear and determinative error on the part of the judge. Thus, it is not open to this Court on appeal to draw any inference from this record that B inquired whether or not he was a source and did not receive a straight answer. Such an inference is not only contrary to the evidence that the application judge accepted but it is also contrary to the judge’s express finding of fact that the SQ did nothing that could have led B to believe that he would become a confidential police source.
On the issue of alleged police promises of confidentiality, the application judge was alive to and expressly noted that there was inconsistency in the evidence. A review of the record shows that there was indeed inconsistency or confusion in the evidence about what was or was not confidential. Sorting this out is the job of the application judge, not of an appellate court. The judge did so and there is no basis to interfere with his findings.
The application judge did not fail to consider whether a promise of confidential informer status could be implicit in this case. Rather, the judge’s factual findings and the record amply support the conclusion that he was careful to consider whether any promise was made implicitly as well as explicitly, even though B’s evidence was solely to the effect that the SQ had made repeated explicit promises. This was the only basis for his professed belief that he had informer status.
The judge was alive to B’s dealings with other police agencies. Having heard that evidence, however, he found as a fact that the evidence in the case required that B’s dealings with the SQ be considered differently. The judge referred to several differences in support of this conclusion, which is amply supported by the evidence.
In light of the application judge’s extensive findings, there is no evidence to support the view that there may have been some implicit promise in this case. In fact, this possibility is inconsistent with B’s own clear and unequivocal evidence that the claim of informer privilege arose solely from alleged express promises, which the application judge concluded had never been made. Moreover, the judge accepted police evidence that there was never even any thought of making B a confidential informer and that they did nothing that could let B understand that he had that status. The judge also found that it was some years after B’s initial dealings with the SQ that B started to claim the status of a confidential police informer. These findings leave no room for the imputed or implied promise theory.
Finally, the judge’s conclusions that B actually knew that he did not have informer privilege and that B’s claim of that status was an after-the-fact exercise of opportunism make irrelevant any possibility that some hypothetical person in B’s circumstances might have thought that the promise was implicit. B knew he had no such promise and provided the information anyway. B was a disappointed suitor for a potentially lucrative co-operating witness contract and an opportunist, not a police informer.
In light of the record, there is no reason to interfere with the application judge’s findings of fact. Nothing in this case, however, should be taken as undermining the importance of the police being clear with potential sources about their status; quite the contrary. Given the important role that informer status plays in the detection and prosecution of crime, courts must not undermine its effectiveness by condoning police actions that leave potential informers uncertain or confused as to their status. The application judge in this case was clearly alive to these concerns, as he ought to have been, and reached the conclusions he did after a careful and thorough review of all of the evidence. His decision should not be disturbed.
Cases Cited
By Abella J.
Referred to: R. v. Barros, 2011 SCC 51, [2011] 3 S.C.R. 368; Bisaillon v. Keable, [1983] 2 S.C.R. 60; R. v. Leipert, [1997] 1 S.C.R. 281; Attorney‑General v. Briant (1846), 15 M. & W. 169, 153 E.R. 808.
By Cromwell J. (dissenting)
R. v. Stinchcombe, [1991] 3 S.C.R. 326; Bisaillon v. Keable, [1983] 2 S.C.R. 60; R. v. Leipert, [1997] 1 S.C.R. 281; Named Person v. Vancouver Sun, 2007 SCC 43, [2007] 3 S.C.R. 253; R. v. Babes (2000), 146 C.C.C. (3d) 465; R. v. Barros, 2011 SCC 51, [2011] 3 S.C.R. 368; R. v. Basi, 2009 SCC 52, [2009] 3 S.C.R. 389.
APPEAL from a decision of the Quebec Superior Court (Gagnon J.), No. 200‑01‑134678‑097, rendered on September 17, 2010. Appeal allowed, Rothstein and Cromwell JJ. dissenting.
Guy Bertrand, for the appellant.
Jacques Casgrain and Maxime Laganière, for the respondent.
Louis Belleau, for the Others.
François Lacasse and Nancy L. Irving, for the intervener the Director of Public Prosecutions.
Susan Magotiaux, for the intervener the Attorney General of Ontario.
Anil K. Kapoor and Lindsay L. Daviau, for the intervener the Criminal Lawyers’ Association (Ontario).
The judgment of McLachlin C.J. and LeBel, Fish, Abella, Moldaver and Karakatsanis JJ. was delivered by
[1] Abella J. — This appeal involves an individual, “B”,[1] who was guaranteed confidentiality by one police force and then transferred to another. The second police force failed to answer B’s repeated questions about his status, nor did it at any time clarify what that status was. The disposition of this case rests on the consequences of the information vacuum created by the second police force and, in particular, on whether an inference could reasonably have been drawn that an implicit promise of confidentiality was made based on the nexus between the two police forces.
[2] The application judge held that B’s status as a confidential informant with one police force did not automatically make him a confidential informant for the other. The application judge also found that B lied about being expressly promised confidential informer status by the second police force. But the inquiry should not have ended there. What remained unanswered was whether, due to the interaction between the police forces and other police conduct, there was a nexus between the two police forces and, if so, whether B was implicitly promised that the confidentiality he enjoyed with one police force would continue to the other. The application judge accepted the testimony of officers in the second police force concerning their interactions with B. Significantly, that testimony included acknowledgments that B repeatedly asked what his status was, and was never clearly told that he was not a police informer.
[3] The application judge concluded that B’s status with each police force was to be treated differently. He never explained why. B placed himself at risk by providing the Sûreté du Québec (“SQ”) with information leading to the investigation and prosecution of violent crime. I see an error in the application judge’s failure to make any findings about whether the transfer, the relationship between the two police forces, and the similarities in B’s relationships with both, could have led someone in B’s position to believe, on reasonable grounds, that the status he had with the first police force would continue with the police force to which he was transferred.
[4] The record reveals that these are live issues. None of the application judge’s findings address them, even accepting all of the findings delineated by Justice Cromwell. This, with respect, leaves a key question unanswered, namely, whether an implicit promise of confidentiality was made in these circumstances.
Background
[5] Motivated by fear for his safety and a desire for vengeance, B met with two officers of the first police force in order to give them information. B’s information implicated a number of people who were involved in violent criminal activity and in which he admitted to having been involved as well. B was promised confidentiality and given an informant code in that police force’s system. The police force then released B, but because the criminal activity was outside its authority, the force transmitted the information it got from B to the SQ.
[6] Two days later, B was transferred to the SQ and two SQ officers arrested him for his crimes. B continued to want to cooperate and to give information both about his crimes and his prior criminal activities. In the next several days, B made a number of statements to the SQ relating to them.
[7] B was given an informant code in the SQ’s system and, for five years, continued to cooperate with the SQ. Most of B’s declarations to the SQ were preceded by a statement promising him that the information he provided would not be used against him in a proceeding, except for perjury, but that charges could be brought against him if they were supported by independent evidence.
[8] During the course of those five years, B pleaded guilty to one of his violent crimes and was sentenced for it.
[9] At the end of the five years, the Crown ordered the SQ to redact B’s name and any information that could identify him from all documents and to put those documents under seal. A few months later, two SQ officers went to the penitentiary to have B sign a document entitled [translation] “Waiver of Informer Privilege” — a waiver of his right to invoke police informer privilege. He did not sign. Thereafter, B’s name does not appear in any new documents, and was replaced with the word “source”.
[10] The Crown brought an application to clarify B’s status and determine if he benefitted from a police informer privilege that assured the confidentiality of his identity. The hearing took place in closed session, with documents under seal.
[11] At the hearing, B testified that he was told by the SQ on several occasions that he was an informer. He relied on the fact that he was attributed an informant code by the SQ, that he was asked to sign a “Waiver of Informer Privilege”, and that he was identified as a “source” in any documents created after the Crown requested the general redaction. For its part, the Crown argued that the SQ expected B to become a cooperating witness; that B was told on many occasions that his statements could be used against him; that B’s identity was not concealed by the SQ in documents and statements prior to the sealing of the documents; and that the police had made limited disclosure of one of B’s statements on one occasion. The Crown suggested that this was inconsistent with B’s testimony that he had been promised that his identity would remain protected.
[12] The application judge found that the first police force’s officers had promised to keep B’s identity confidential in exchange for the information he provided. All of B’s statements to that police force, therefore, were protected by informer privilege. This is not contested by any of the parties.
[13] The application judge concluded, however, that [translation] “[t]he evidence requires that [B’s] situation be viewed differently depending on whether information was being disclosed to the [first police force] or to investigators from the Sûreté du Québec”. As to B’s status with the SQ, the application judge saw the evidence as presenting “two diametrically opposed versions” of events. The application judge rejected B’s evidence that the SQ had expressly told him that he was a confidential informer, and accepted the SQ’s denial that any such promise was made.
[14] While he noted that it was [translation] “odd” that the police would ask a person to renounce his right to invoke police informer privilege if it had never been offered in the first place, the application judge nonetheless ultimately accepted the testimony of the Crown’s witnesses and found that B’s testimony was not credible. He therefore concluded that B had never been promised police informer status by the SQ in exchange for his statements.
[15] But the application judge undertook no analysis into whether the promise was implicit in the circumstances because of the nexus between the first police force, who had expressly granted B informer status, and the SQ, to whom the first force immediately transferred B because they lacked jurisdiction over the crimes he was describing. That oversight was based on the application judge’s conclusion that B’s relationships with the first police force and the SQ had to be treated differently. The application judge therefore ignored B’s relationship with the first force entirely when assessing his status vis-à-vis the SQ.
[16] The application judge never explained why the two forces had to be treated differently, nor did he make any findings related to the issue. Instead, his analysis unfolded based on this unexplored assumption. Yet B only became involved with the SQ due to his collaboration with the first police force as a confidential informer. The failure to consider this nexus, in my respectful view, meant that the application judge did not consider whether the police conduct gave rise to an implicit promise of protected status. In other words, would the police conduct have led someone in B’s position to believe, on reasonable grounds, that his protected status would continue when he and his information were transferred to the SQ?
[17] I would set aside the application judge’s order and direct that a new hearing take place to determine B’s status in light of the nexus between the police forces.
Analysis
[18] In R. v. Barros, [2011] 3 S.C.R. 368, this Court held that “not everybody who provides information to the police thereby becomes a confidential informant” (para. 31). The Court was clear, however, that “the promise [of protection and confidentiality] need not be express [and] may be implicit in the circumstances” (para. 31, citing Bisaillon v. Keable, [1983] 2 S.C.R. 60). The legal question is whether, objectively, an implicit promise of confidentiality can be inferred from the circumstances. In other words, would the police conduct have led a person in the shoes of the potential informer to believe, on reasonable grounds, that his or her identity would be protected? Related to this, is there evidence from which it can reasonably be inferred that the potential informer believed that informer status was being or had been bestowed on him or her? An implicit promise of informer privilege may arise even if the police did not intend to confer that status or consider the person an informer, so long as the police conduct in all the circumstances could have created reasonable expectations of confidentiality.
[19] The application judge recognized that the promise of confidentiality could be either explicit or implicit, but he undertook no analysis into whether an implicit promise could have been inferred from the circumstances of the relationship between the two police forces. In fairness, a theory based on an implicit promise of confidentiality was not specifically argued before the application judge. The arguments before him centred on B’s claims that SQ officers had expressly and repeatedly told him that his identity would remain confidential, which the officers denied. Once the application judge found against B on that point, he effectively overlooked the possibility that the police conduct, even in the absence of any express statements, could have amounted to an implicit promise of confidentiality.
[20] Justice Cromwell states that there is no live issue as to whether B received an implicit promise of confidentiality, because the application judge effectively found that B knew that he did not have informant status with the SQ. With respect, those were not the application judge’s findings. I agree that if there had been a finding that B actually knew that he did not have informant status, the inquiry would end there. But there was no such finding. What the application judge did was to reject B’s claims that the SQ expressly promised him confidential informer status. He invoked B’s [translation] “doubtful credibility . . . and . . . obvious opportunism”. In other words, the application judge found that B lied in saying that the SQ officers expressly promised him confidentiality in order to bolster his claim. That does not, however, amount to a finding that B knew all along that he did not benefit from confidentiality with the SQ.
[21] Similarly, B’s failure to testify about an implicit promise does not necessarily mean that no such promise was made or that he knew that informer status had been withheld. While B may have been found not to be credible about receiving explicit promises of confidentiality, the evidence in the record of a nexus between the police forces leaves open the possibility of an implicit promise. B’s “obvious opportunism” and lack of credibility do not, in the circumstances of this case, close the door to finding an implicit promise of confidentiality, nor do they dispense with the need for the application judge to examine the nexus between the investigations and determine whether it gave rise to such a promise. It is hard to speculate what the application judge’s findings might have been had he specifically turned his mind to the issue.
[22] For me, the possibility of an implied promise of confidentiality emerges from this record based on the nexus between the first police force and the SQ, and the SQ’s failure to clarify to B what his status was. First, B’s interactions with the SQ originated in his relationship as a confidential informant with the first police force and the two police forces cooperated in handling B over the following years. In addition, the evidence is undisputed that no one ever told B that he ceased to be a confidential informant when he was transferred to the SQ, even though it is also undisputed that he repeatedly asked the SQ to clarify his status.
[23] The key issue is the nexus between the police forces. B advanced the argument that all police forces are “indivisible” with respect to police informer privilege such that, where one police force extends a promise of confidentiality to an informer, that status will continue to attach to the person when he or she is transferred to another force. I see no need for such a blunt “indivisibility” rule. The fact that one police force has granted informer status to an individual is not, on its own, a sufficient basis for a claim of informer privilege with another police force.
[24] This is not to say that B’s transfer from one police force to another is irrelevant to whether B had reason to believe that he had been given informer privilege by the SQ. Given the interactions between the two police forces in handling B, and given the essential continuity of B’s relationship with both forces, in my view B may have had reasonable grounds to believe that the protection promised by the first police force would continue with the ongoing flow of information that he was providing to the SQ.
[25] B approached the first police force in order to provide information about violent crimes. He was promised informer privilege with respect to the information that he provided to that force from their initial meeting onwards. One of the two officers who had been at that meeting explained that he perceived a strong need for confidentiality as of that first meeting, given the risk to B’s safety and the sensitive information he was providing concerning serious criminal activity:
[translation] We can’t afford to put [his] safety at risk. One thing that’s absolutely certain is that we wouldn’t have time to, as we say, . . . “code” [him] at that time; there’s a coding procedure and all that. But in our minds, everything Named Person B told us . . . went into a classified file to protect [his] . . . shall we say, secrets.
. . .
. . . everything that was said . . . [h]ad to remain highly confidential, and there was evidence there that related to past investigations, [violent crimes]. We couldn’t afford to . . . we couldn’t give it a low classification. It had to be given a high classification . . . .
[26] In its investigations, the SQ used confidential information B had given to the first police force during their initial meetings, prior to the SQ’s involvement. Significantly, that information was unrelated to the charges against B, and included a list of individuals involved in violent criminal activity. In other words, while it is true that the SQ arrested B for a violent crime that he committed, the SQ treated B as much more than merely a suspect in a serious crime. B was expected, and in fact continued to provide the SQ with information about violent criminal activity, just as he had done with the first police force.
[27] There is no doubt that the SQ knew of B’s protected status with the first police force. One of the SQ officers who arrested B acknowledged that when the SQ picked B up, they knew that B had provided [translation] “a lot of information” to the first police force, that B wanted to cooperate by providing information, that he was “protected” by that other force, and that the SQ would have to continue to protect him:
[translation] Well, we knew from the beginning that Named Person B wanted to give information, there was no secret about it, and when we took charge of Named Person B, it was because the [first police force] told us [he] was implicated in [violent criminal activity, for which] the Sûreté du Québec [was] responsible. . . . So we met [him] as a [violent crime] suspect, but we knew that this person . . . wanted to co-operate with the Sûreté. We knew that [he]’d given information to the [first police force]. We knew that this was a person who was protected by the [first police force]. We knew that we were the ones who would continue to protect [him]. So, we were in a sense [his] controllers. [Emphasis added.]
[28] Another SQ officer who had dealt with B from the beginning acknowledged that he knew that B was coded as a “source” by the other police force when he first talked to him upon his transfer from that force. The exchange at the hearing was as follows:
[translation]
Q Was [he] already classified as a “source” by the Quebec police?
. . .
A I would say, to the best of my knowledge, I would say no.
. . .
Q Did you know that [he] had been one for the [first police force] or that [he] still was one for the [first police force]?
A A “source” for the [first police force]?
Q Yeah.
A It’d been coded that way . . . . [Emphasis added.]
[29] Notes taken two years after B’s arrest by an officer of the first police force following a conversation with an SQ officer (introduced as fresh evidence), confirm that the first police force put the SQ on notice that B benefitted from confidentiality:
[translation]
[The SQ officer and I] discussed [B] and the information that source had given [the two officers of the first police force who first met with B].
Informer privilege was discussed. On this subject, I said that [B] had the privilege because [he] had given the information as a source and [he] had an expectation of confidentiality.
I told [the SQ officer] that in my opinion, though I’m not a lawyer, if the information is confidential and if it is included in [any document], it should be redacted. To be confirmed with a lawyer.
[30] For five years, B continued to provide the SQ with wide-ranging information dealing with violent crimes. SQ officers kept going back to him as a source, and his information led to the investigation and prosecution of many other crimes.
[31] During the years when he was being questioned, B knew that he was being dealt with interchangeably by both police forces. At various points, he stayed under the first police force’s guard or at that force’s premises and was picked up there by SQ officers. On at least three occasions, an officer of the first force met with B along with SQ officers.
[32] At the hearing, an SQ officer acknowledged that the first police force and the SQ were effectively operating together in respect of an investigation that developed around B’s information. In order to show his good faith, B had surrendered various items to the SQ, including thousands of dollars. The SQ turned the money over to the first police force. When asked why the SQ turned the money over to that force, the SQ officer noted that [translation] “[the first force] was on the case, was . . . participating in the case”. He referred to the joint handling of B as “a sort of interorganizational project”.
[33] This interconnection is also reflected in a letter sent by an officer of the first police force to the SQ with respect to the money, which acknowledges B’s confidentiality with the first force and implies that that force believed that B had a similar status with the SQ. The officer asked the SQ to return the money to B because the only evidence that the money was the proceeds of crime was given by B to the SQ under a promise that it would not be used against him. He indicated that
[translation] given the status of [B] with the Sûreté du Québec and the [first police force], and given our obligation to keep this status confidential, we have been unable to gather any other evidence that could be used. [Emphasis added.]
[34] In other words, the relationship between B and the SQ was not only connected to the first police force in an ongoing way, it was not significantly different from that between B and the first force. Both police forces warned him that he would receive no immunity in respect of his own criminal acts, and both forces expected him to become a cooperating witness in other cases. Based on B’s information, the two police forces worked together and dealt with B interchangeably.
[35] This evidence of a close connection between the first police force and the SQ establishes a foundation upon which someone in B’s position may reasonably have seen himself as being part of a joint, ongoing operation between the two police forces: the first force had given him an express promise of informer privilege, and the SQ, to whom he was transferred consensually for jurisdictional reasons, took advantage of the relationship and information that flowed from this protection.
[36] In addition to the temporal and operational nexus between the two forces, the evidence is undisputed that B insistently asked what his status was and never received a clear answer. An SQ officer who had dealt with B since his arrest testified that around the time of his transfer to the SQ, B [translation] “was worried about what was going to happen to [him]”, and that he was “deeply concerned” about this. It was a source of stress for B, who was “extremely afraid” that he would be killed. Another SQ officer testified that B was asking about his status two years after his transfer. The application judge found that B was still asking about his status two years after that.
[37] The SQ’s conduct in failing to clarify B’s status to him despite being repeatedly asked to do so, may well have led someone in B’s position to reasonably believe that his identity would be protected. It bears emphasizing that no one ever told B that he was not a confidential informant with the SQ. One of the SQ officers who arrested B, for instance, testified that he did not discuss B’s status with him when he first took B into SQ custody, because B had already “started the process” with the first police force:
[translation]
Q Was [his] testimony as a cooperating witness, [his] status discussed . . . .
A It was not discussed.
Q . . . at that time?
A No, because [he]’d already started with the [first police force]. Named Person B, [he] was in a process with [that force], we knew that [he]’d given a lot of information to the [first force]. We knew that because we’d met the guys from that force. So I don’t know what Named Person B might’ve been thinking at that time. [He] . . . was in a process in [his] mind, that’s for sure, for sure . . . because . . . [he] was cooperating with [the first force]. [Emphasis added.]
Although this officer was referring to the process of becoming a cooperating witness, the “process” B had started with the first police force included a promise of confidentiality made only two days earlier.
[38] While the SQ officers were adamant that they did not think of B as an informer, they do not appear to have shared this view with B. B was promised confidentiality by the first police force because his cooperation put his life at risk. The risk did not change when he was transferred to the SQ two days later. From that point onward, B repeatedly voiced concerns about his confidentiality, his safety, and the uncertainty and confusion he felt while waiting for the possibility of a cooperating witness contract to materialize.
[39] There is no doubt that much of the focus of B’s questions related to whether the cooperating witness contract was forthcoming and to the type of protection that he would be given under it. But there is also no doubt that he voiced inquiries that raised confidentiality concerns. Where B’s status was in flux and unclear as a result of his transfer from one police force to another, the SQ’s failure to clarify his status may have given rise to a reasonable belief in informer status, whether or not he actually asked a specific question like, “Will I be treated as a police informer in the event of failure to conclude a cooperating witness contract?”
[40] In these circumstances, the fact that nobody clarified for him whether the confidentiality promised by the first police force continued to apply to his dealings with the SQ could well have led him to believe that the protection he had with the first force continued pending the cooperating witness contract.
[41] The fresh evidence also illustrates the ambiguity generated by the SQ’s approach to B’s status. Two documents introduced as fresh evidence were written by one of the SQ officers who had been involved with B since his transfer. These documents followed a discussion the SQ officer had two years after B’s arrest with an officer of the first police force about B’s status. In these documents, B was referred to as a “source”, as was the practice with informers, rather than by name. Many other documents prepared by SQ officers refer to B by his name. In other words, SQ officers inconsistently referred to B, sometimes designating him by his real name, and sometimes calling him an informer. Their confusion may well have led B to reasonably assume that his confidential status remained unchanged upon his transfer from the first police force to the SQ.
[42] Justice Cromwell concludes that B could not reasonably have believed that the SQ considered him an informer, given the expectation that he would become a cooperating witness. But informer privilege is not necessarily inconsistent with being a cooperating witness. B’s position at the hearing was that he believed he would remain a police informer until he secured a cooperating witness contract with the Crown. In other words, his identity would remain confidential until the Crown confirmed that it intended to call him as a witness and provide certain advantages in exchange for his testimony.
[43] As this Court recognized in Barros, the same person can be an informer entitled to privilege in one matter, and a witness whose identity is disclosable in another:
Once a police informer goes into the “field” and acts as a police agent, the informer privilege is no longer applicable to prevent disclosure of his or her identity in respect of the events in which he or she acted as an agent. . . . This does not