R. v. Leipert, [1997] 1 S.C.R. 281
Richard Dean Leipert Appellant
v.
Her Majesty The Queen Respondent
and
Greater Vancouver Crime Stoppers Association Intervener
Indexed as: R. v. Leipert
File No.: 25293.
1996: November 28; 1997: February 6.
Present: Lamer C.J. and La Forest, L’Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
on appeal from the court of appeal for british columbia
Criminal law ‑‑ Evidence ‑‑ Police‑informer privilege ‑‑ Anonymous informer ‑‑ Police investigating accused following Crime Stoppers tip that drugs were being grown in his house ‑‑ Tip mentioned in information to obtain warrant to search accused’s house ‑‑ Search resulting in accused being charged with drug offences ‑‑ Crown refusing accused’s request to produce tip sheet on ground of informer privilege ‑‑ Whether trial judge erred in ordering production of edited tip sheet.
Criminal law -- Evidence -- Police-informer privilege -- Exception -- Whether right to disclosure of documents in Crown’s possession and Charter right to make full answer and defence creating new exception to informer privilege rule.
Criminal law ‑‑ Search and seizure ‑‑ Validity of search warrant ‑‑ Police investigating accused following Crime Stoppers tip that drugs were being grown in his house ‑‑ Tip mentioned in information to obtain warrant to search accused’s house ‑‑ Search resulting in accused being charged with drug offences ‑‑ Crown refusing accused’s request to produce tip sheet on ground of informer privilege ‑‑ Whether Crown entitled to sustain validity of search warrant without reference to tip in absence of defence consent -- Whether accused entitled to disclosure of tip sheet.
The police received a tip from a Crime Stoppers Association that the accused was growing marijuana in his basement. A police officer went to the accused’s house accompanied by a sniffer dog on four different occasions. The officer and the dog walked the street in front of the residence and each time the dog indicated the presence of drugs in the house. On one occasion, the officer smelled the aroma of marijuana coming from the house. He also observed that the basement windows were covered and that one window was barred shut. On the basis of these observations, the officer obtained a search warrant. The information filed in support of the application for the warrant also disclosed that the officer had received a Crime Stoppers tip. Following a search of the house, the accused was charged with cultivation of marijuana and possession of marijuana for the purpose of trafficking. At trial, the accused asserted that, pursuant to his right under the Canadian Charter of Rights and Freedoms to make full answer and defence, he was entitled to the Crime Stoppers document reporting the tip. The Crown refused disclosure on the ground of informer privilege. The trial judge viewed the document and attempted to edit out all references to the identity of the informer. He then ordered disclosure. The Crown asked to rely on the warrant without reference to the tip. The trial judge refused this request because the accused did not consent. As a result, the Crown ceased to tender evidence, the defence elected to call no evidence, and the trial judge entered an acquittal. The Court of Appeal reversed the trial judge’s decision and ordered a new trial.
Held: The appeal should be dismissed.
Per Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.: The rule of informer privilege is of such fundamental importance to the workings of a criminal justice system that it cannot be balanced against other interests relating to the administration of justice. Once the privilege has been established, neither the police nor the court possesses discretion to abridge it. The privilege belongs to the Crown, which cannot waive it without the informer’s consent. In that sense, the privilege also belongs to the informer. The privilege prevents not only disclosure of the informer’s name, but also of any information which might implicitly reveal his identity. In the case of an anonymous informer, it is almost impossible for a court to know what details may reveal his identity.
The informer privilege is subject only to the “innocence at stake” exception. In order to raise this 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. The accused’s right to full disclosure of documents in the Crown’s possession in aid of the Charter guarantee of the right to make full answer and defence, as interpreted in Stinchcombe, has not created a new exception to the informer privilege rule. To the extent that rules and privileges stand in the way of an innocent person establishing his innocence, they must yield to the Charter guarantee of a fair trial. By permitting an exception where innocence is at stake, the common law rule of informer privilege does not offend this principle.
Where an accused seeks to establish that a search warrant was not supported by reasonable grounds, he may be entitled to information which may reveal the identity of an informer notwithstanding informer privilege in circumstances where the information is absolutely essential. “Essential” circumstances exist where the accused establishes the “innocence at stake” exception to informer privilege. Thus, absent a basis for concluding that disclosure of the information that may reveal the identity of the informer is necessary to establish the innocence of the accused, the information remains privileged and cannot be produced, whether at the hearing into the reasonableness of the search or at the trial proper.
Anonymous tip sheets should not be edited with a view to disclosing them to the defence unless the accused can bring himself within the innocence at stake exception. To do so runs the risk that the court will deprive the informer of the privilege which belongs to him absolutely, subject only to the “innocence at stake” exception. It also undermines the efficacy of programs such as Crime Stoppers, which depend on guarantees of anonymity to those who volunteer information on crimes. In the case of an anonymous informer, where it is impossible to determine which details of the information provided by the informer will or will not result in that person’s identity being revealed, none of those details should be disclosed, unless there is a basis to conclude that the innocence at stake exception applies.
Here, the trial judge erred in editing the tip sheet and in ordering the edited sheet disclosed to the accused. The identity of the anonymous informer was protected by privilege and, given the anonymous nature of the tip, it was impossible to conclude whether the disclosure of details remaining after editing might be sufficient to reveal the identity of the informer to the accused. The informer’s privilege required nothing short of total confidentiality in this case. As it was not established that the informer’s identity was necessary to establish the innocence of the accused, the privilege continued in place.
The trial judge also erred in declining to allow the Crown to delete the reference to the informer from the material in support of the search warrant. Since the accused has not brought himself within the “innocence at stake” exception, the trial judge should have permitted the Crown to defend the warrant on the material in the information to obtain the warrant with the reference to the Crime Stoppers’ tip deleted.
Per L’Heureux-Dubé J.: The details of the informer’s tip should not have been disclosed in this case. McLachlin J.’s description of the general principles and procedure to be considered when the defence makes a request to see an anonymous tip is agreed with. However, as it is not strictly necessary, no opinion is expressed regarding the Charter argument and other issues raised in her reasons.
Cases Cited
By McLachlin J.
Distinguished: R. v. Garofoli, [1990] 2 S.C.R. 1421; R. v. Hunter (1987), 57 C.R. (3d) 1; considered: R. v. Stinchcombe, [1991] 3 S.C.R. 326; Bisaillon v. Keable, [1983] 2 S.C.R. 60; referred to: R. v. Scott, [1990] 3 S.C.R. 979; People v. Callen, 194 Cal.App.3d 558 (1987); Solicitor General of Canada v. Royal Commission of Inquiry (Ontario Health Records), [1981] 2 S.C.R. 494; R. v. Hardy (1994), 45 B.C.A.C. 146; Marks v. Beyfus (1890), 25 Q.B.D. 494; R. v. Chiarantano, [1990] O.J. No. 2603 (QL), aff’d [1991] 1 S.C.R. 906; R. v. O’Connor, [1995] 4 S.C.R. 411; A. (L.L.) v. B. (A.), [1995] 4 S.C.R. 536; R. v. Seaboyer, [1991] 2 S.C.R. 577.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms.
Authors Cited
Sopinka, John, Sidney N. Lederman and Alan W. Bryant. The Law of Evidence in Canada. Toronto: Butterworths, 1992.
Tanovich, David M. “When Does Stinchcombe Demand that the Crown Reveal the Identity of a Police Informer?” (1995), 38 C.R. (4th) 202.
APPEAL from a judgment of the British Columbia Court of Appeal (1996), 74 B.C.A.C. 271, 121 W.A.C. 271, 106 C.C.C. (3d) 375, 47 C.R. (4th) 31, allowing the Crown’s appeal from the accused’s acquittal on charges of cultivation of marijuana and possession of marijuana for the purpose of trafficking, and ordering a new trial. Appeal dismissed.
Michael D. Sanders, for the appellant.
S. David Frankel, Q.C., and Nancy M. Young, for the respondent.
Robert S. Gill, for the intervener.
//McLachlin J.//
The judgment of Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ. was delivered by
1 McLachlin J. -- This appeal raises the issue of whether the defence is entitled to receive details of an informer telephone tip to Crime Stoppers, a public service organization working to combat crime. The appellant asserts that he is entitled to such details pursuant to his right under the Canadian Charter of Rights and Freedoms to make full answer and defence. The Crown argues that disclosure is barred by the common law rule that an informer’s communications are privileged. For the reasons that follow, I am of the view that the information is privileged and need not be disclosed.
I. The Facts
2 The police received a tip from the Greater Vancouver Crime Stoppers Association that the appellant, Richard Leipert, was growing marijuana in his basement. A police detective went to Leipert’s residence accompanied by Bruno, a sniffer dog. On four different occasions the policeman and Bruno walked the street in front of Leipert’s residence. Each time Bruno indicated the presence of drugs in Leipert’s house. On one occasion, the policeman smelled the aroma of marijuana coming from Leipert’s house. The officer also observed that the basement windows were covered and one window was barred shut. On the basis of these observations, the officer obtained a search warrant. The information filed in support of the application for the warrant disclosed that the officer had received a Crime Stoppers tip that drugs were being grown in Leipert’s house. However, the main allegations raised in support of the warrant were the observations of the police officer at the site. When the search warrant was executed, evidence was seized and the appellant was charged with cultivation of marijuana and possession of marijuana for the purpose of trafficking.
II. Rulings
3 At trial, the accused asked the officer if he had the Crime Stoppers document reporting the tip. The officer had the document, but the Crown refused disclosure on the ground of informer privilege. The trial judge viewed the document and attempted to edit out all references to the identity of the informer. He then ordered disclosure. The Crown asked to rely on the warrant without reference to the tip. The trial judge refused this request because the accused did not consent. As a result, the Crown ceased to tender evidence, the defence elected to call no evidence, and the trial judge entered an acquittal.
4 The Court of Appeal reversed the decision of the trial judge and ordered a new trial: (1996), 74 B.C.A.C. 271, 121 W.A.C. 271, 106 C.C.C. (3d) 375, 47 C.R. (4th) 31. Southin J.A. declined production on the ground that the tip was irrelevant; while evidence of the tip figured as part of the narrative, the Crown did not rely on it either to justify the issuance of the warrant or to prove guilt. McEachern C.J.B.C., agreeing in the result and with most of Southin J.A.’s reasons, asserted that the document recording the tip was privileged, subject only to the “innocence at stake” exception. In his view, it was unnecessary and unfortunate that the trial judge had examined the tip sheet. McEachern C.J.B.C. further held that the trial judge erred in refusing the Crown’s request to rely on the information with the reference to the tip sheet deleted. Trial judges should be cautious, he asserted, in ordering the production of even carefully edited tip sheets or reports for which informant privilege is claimed, given the possibility that even seemingly innocuous details may lead to identification of the informant. McEachern C.J.B.C. concluded by commending Crime Stoppers for the valuable public service it provides. Cumming J.A. agreed with the disposition of both his colleagues.
III. The Issues
5 1. Did the trial judge err in ordering the production of the edited tip sheet?
2. In the absence of defence consent, was the Crown entitled to sustain the validity of the warrant without reference to the tip?
IV. Discussion
A. Did the Trial Judge Err in Ordering Production of the Edited Tip Sheet?
(1) The Argument on Informer Privilege
6 The appellant relies on the principle that the Crown is under a general duty to disclose all information within its control unless it is clearly irrelevant or privileged: R. v. Stinchcombe, [1991] 3 S.C.R. 326, at p. 339. He argues that the Crown did not establish that the information in the tip sheet was clearly irrelevant. As for privilege, he asserts that there is no privilege in the edited document which the trial judge ordered disclosed, since it could not reveal the identity of the informer. It follows, he concludes, that the trial judge properly ordered production of the tip sheet to the defence.
7 The Crown in reply asserts that the entire tip sheet is privileged, subject only to the “innocence at stake” exception. Since that exception is not proved, the tip sheet should not have been disclosed. The trial judge’s approach of editing the privileged document to transform it into a non-privileged document is improper and risky, as seemingly innocuous details may be sufficient to identify an informant. This would, moreover, undermine Crime Stoppers’ efficacy, which depends on being able to assure informants that they will not be identified.
8 The trial judge was faced with two apparently conflicting rules. The first was the rule requiring disclosure to the defence of all information not clearly irrelevant or privileged. The second was the rule of informer privilege. The trial judge attempted to accommodate both rules by editing the tip sheet to remove information that could reveal the tipster’s identity and ordering production of the balance of the tip sheet. I share the view of McEachern C.J.B.C. in the Court of Appeal that the trial judge’s approach gave insufficient weight to both the importance of maintaining informer privilege and the danger of ordering disclosure of tip sheets containing details which, despite editing, may enable an accused person to identify the informant.
(a) The Importance of Informer Privilege
9 A court considering this issue must begin from the proposition that informer privilege is an ancient and hallowed protection which 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 this duty carries with it the risk of retribution from those involved in crime. The rule of informer privilege was developed to protect citizens who 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), 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 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.
10 The rule is of fundamental importance to the workings of a criminal justice system. As described in Bisaillon v. Keable, [1983] 2 S.C.R. 60, at p. 105:
The rule gives a peace officer the power to promise his informers secrecy expressly or by implication, with a guarantee sanctioned by the law that this promise will be kept even in court, and to receive in exchange for this promise information without which it would be extremely difficult for him to carry out his duties and ensure that the criminal law is obeyed.
In R. v. Scott, [1990] 3 S.C.R. 979, at p. 994, Cory J. stressed the heightened importance of the rule in the context of drug investigations:
The value of informers to police investigations has long been recognized. As long as crimes have been committed, certainly as long as they have been prosecuted, informers have played an important role in their investigation. It may well be true that some informers act for compensation or for self-serving purposes. Whatever their motives, the position of informers is always precarious and their role is fraught with danger.
The role of informers in drug-related cases is particularly important and dangerous. Informers often provide the only means for the police to gain some knowledge of the workings of drug trafficking operations and networks. . . . The investigation often will be based upon a relationship of trust between the police officer and the informer, something that may take a long time to establish. The safety, indeed the lives, not only of informers but also of the undercover police officers will depend on that relationship of trust.
11 In most cases, the identity of the informer is known to the police. However, in cases like the instant one, the identity of the informer is unknown to everyone including the Crime Stoppers’ agent who received the call. The importance of the informer privilege rule in cases where the identity of the informer is anonymous was stressed by the California Court of Appeal in People v. Callen, 194 Cal.App.3d 558 (1987). The court, in holding that the police have no duty to determine or disclose the identity of anonymous informers, stated at p. 587:
Such an investigatory burden would not only be onerous and frequently futile, it would destroy programs such as Crimestoppers by removing the guarantee of anonymity. Anonymity is the key to such a program. It is the promise of anonymity which allays the fear of criminal retaliation which otherwise discourages citizen involvement in reporting crime. In turn, by guaranteeing anonymity, Crimestoppers provides law enforcement with information it might never otherwise obtain. We are satisfied the benefits of a Crimestoppers-type program -- citizen involvement in reporting crime and criminals -- far outweigh any speculative benefits to the defense arising from imposing a duty on law enforcement to gather and preserve evidence of the identity of informants who wish to remain anonymous.
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, as is the case, for example, with Crown privilege or privileges based on Wigmore’s four-part test: J. Sopinka, S. N. Lederman and A. W. Bryant, The Law of Evidence in Canada (1992), at pp. 805-6. In Bisaillon v. Keable, supra, this Court contrasted informer privilege with Crown privilege in this regard. In Crown privilege, the judge may review the information and in the last resort revise the minister’s decisions by weighing the two conflicting interests, that of maintaining secrecy and that of doing justice. The Court stated at pp. 97-98:
This procedure, designed to implement Crown privilege, is pointless in the case of secrecy regarding a police informer. In this case, the law gives the Minister, and the Court after him, no power of weighing or evaluating various aspects of the public interest which are in conflict, since it has already resolved the conflict itself. It has decided once and for all, subject to the law being changed, that information regarding police informers’ identity will be, because of its content, a class of information which it is in the public interest to keep secret, and that this interest will prevail over the need to ensure the highest possible standard of justice.
Accordingly, the common law has made secrecy regarding police informers subject to a special system with its own rules, which differ from those applicable to Crown privilege.
13 The Court in Bisaillon v. Keable summed the matter up by asserting that the application of informer privilege “does not depend on the judge’s discretion, as it is a legal rule of public order by which the judge is bound” (p. 93).
14 In summary, informer privilege is of such importance that it cannot be balanced against other interests. Once established, neither the police nor the court possesses discretion to abridge it.
(b) Who May Claim Informer Privilege?
15 The privilege belongs to the Crown: Solicitor General of Canada v. Royal Commission of Inquiry (Ontario Health Records), [1981] 2 S.C.R. 494. However, the Crown cannot, without the informer’s consent, waive the privilege either expressly or by implication by not raising it: Bisaillon v. Keable, supra, at p. 94. In that sense, it also belongs to the informer. This follows from the purpose of the privilege, being the protection of those who provide information to the police and the encouragement of others to do the same. This is the second reason why the police and courts do not have a discretion to relieve against the privilege.
16 The fact that the privilege also belongs to the informer raises special concerns in the case of anonymous informants, like those who provide telephone tips to Crime Stoppers. Since the informer whom the privilege is designed to protect and his or her circumstances are unknown, it is often difficult to predict with certainty what information might allow the accused to identify the informer. A detail as innocuous as the time of the telephone call may be sufficient to permit identification. In such circumstances, courts must exercise great care not to unwittingly deprive informers of the privilege which the law accords to them.
(c) The Scope of Informer Privilege
17 Connected as it is to the essential effectiveness of the criminal law, informer privilege is broad in scope. While developed in criminal proceedings, it applies in civil proceedings as well: Bisaillon v. Keable, supra. It applies to a witness on the stand. Such a person cannot be compelled to state whether he or she is a police informer: Bisaillon v. Keable, supra. And it applies to the undisclosed informant, the person who although never called as a witness, supplies information to the police. Subject only to the “innocence at stake” exception, the Crown and the court are bound not to reveal the undisclosed informant’s identity.
18 Informer privilege prevents not only disclosure of the name of the informant, but of any information which might implicitly reveal his or her identity. Courts have acknowledged that the smallest details may be sufficient to reveal identity. In R. v. Garofoli, [1990] 2 S.C.R. 1421, at p. 1460, Sopinka J. suggested that trial judges, when editing a wiretap packet, consider:
. . . whether the identities of confidential police informants, and consequently their lives and safety, may be compromised, bearing in mind that such disclosure may occur as much by reference to the nature of the information supplied by the confidential source as by the publication of his or her name;
This principle was also confirmed by the British Columbia Court of Appeal in R. v. Hardy (1994), 45 B.C.A.C. 146, at p. 149:
It is well recognized that information which might identify a confidential informant need not be disclosed to the Justice of the Peace or at trial.
Similarly, McEachern C.J.B.C. in the case at bar suggested (at para. 35) that an “accused may know that only some very small circle of persons, perhaps only one, may know an apparently innocuous fact that is mentioned in the document”. He noted: “The privilege is a hallowed one, and it should be respected scrupulously”.
19 The jurisprudence therefore suggests that the Crown must claim privilege over information that reveals the identity of the informant or that may implicitly reveal identity. In many cases, the Crown will be able to contact the informer to determine the extent of information that can be released without jeopardizing the anonymity of the tipster. The informer is the only person who knows the potential danger of releasing those facts to the accused. The difficulty in this case is that the identity of the informer is unknown. Therefore, the Crown is not in a position to determine whether any part of the information could reveal his or her identity. This led the Crown in the case at bar to claim privilege for all of the information provided by the informer. The extension of privilege to all information that could identify an informant justifies this claim in the case of an anonymous informant.
(d) The “Innocence at Stake” Exception
20 Informer privilege is subject only to one exception, known as the “innocence at stake” exception. Lord Esher, M.R., described this exception in Marks v. Beyfus (1890), 25 Q.B.D. 494 (C.A.), at p. 498:
. . . if upon the trial of a prisoner the judge should be of opinion that the disclosure of the name of the informant is necessary or right in order to shew the prisoner’s innocence, then one public policy is in conflict with another public policy, and that which says that an innocent man is not to be condemned when his innocence can be proved is the policy that must prevail.
In Bisaillon v. Keable, supra, this Court held (at p. 93):
The rule is subject to only one exception, imposed by the need to demonstrate the innocence of an accused person.
As Cory J. stated in Scott, supra, at pp. 995-96:
In our system the right of an individual accused to establish his or her innocence by raising a reasonable doubt as to guilt has always remained paramount.
21 In order to raise the “innocence at stake” exception to informer privilege, 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: R. v. Chiarantano, [1990] O.J. No. 2603 (C.A.), per Brooke J.A., aff’d [1991] 1 S.C.R. 906. In Chiarantano, the possibility that the information provided by the informer regarding the arrival at a residence of drugs later found in the possession of the accused might conflict with the evidence of the accused was held not to raise a basis for disclosure pursuant to the “innocence at stake” exception. The court held that the usefulness of the information was speculative and that mere speculation that the information might assist the defence is insufficient. If speculation sufficed to remove the privilege, little if anything would be left of the protection which the privilege purports to accord.
22 On the other hand, circumstances may arise where the evidence establishes a basis for the exception, as where the informer is a material witness to the crime or acted as an agent provocateur: see Scott, supra. Where such a basis is established, the privilege must yield to the principle that a person is not to be condemned when his or her innocence can be proved.
(e) Informer Privilege and the Charter
23 It has been suggested (although not by the appellant) that the Canadian Charter of Rights and Freedoms, as interpreted in Stinchcombe, supra, has introduced another exception to the informer privilege rule based on the right to full disclosure of documents in the Crown’s possession in aid of the Charter guarantee of the right to make full answer and defence: D. M. Tanovich “When Does Stinchcombe Demand that the Crown Reveal the Identity of a Police Informer?” (1995), 38 C.R. (4th) 202. According to this argument, “innocence at stake” would no longer be the only exception to the informer privilege rule.
24 This argument rests on a right to disclosure broader than any which this Court has enunciated. In Stinchcombe, supra, the right to disclosure of Crown documents was expressly made subject to two conditions: relevance (to be interpreted generously as including all that is not clearly irrelevant) and privilege. The right to disclosure was not to trump privilege. Any doubt about its application to informer privilege was expressly negated (at p. 335):
. . . it is suggested that disclosure may put at risk the security and safety of persons who have provided the prosecution with information. No doubt measures must occasionally be taken to protect the identity of witnesses and informers. Protection of the identity of informers is covered by the rules relating to informer privilege and exceptions thereto. . . . [Emphasis added.]
In R. v. O’Connor, [1995] 4 S.C.R. 411, and A. (L.L.) v. B. (A.), [1995] 4 S.C.R. 536, this Court in dealing with disclosure of third party medical and therapeutic records, did not suggest that the informer privilege rule had been altered by the requirement of Crown disclosure, under the Charter. Rather, it appears to have endorsed the common law rule: “so important is the societal interest in preventing a miscarriage of justice that our law requires the state to disclose the identity of an informer in certain circumstances, despite the fact that the revelation may jeopardize the informer’s safety”: O’Connor, supra, at para. 18, per Lamer C.J. and Sopinka J. The comments of L’Heureux-Dubé J. in A. (L.L.) v. B. (A.), supra, at paras. 37 and 69, are to the same effect. This Court has consistently affirmed that it is a fundamental principle of justice, protected by the Charter, that the innocent must not be convicted: R. v. Seaboyer, [1991] 2 S.C.R. 577, at p. 611; Stinchcombe, supra; O’Connor, supra. To the extent that rules and privileges stand in the way of an innocent person establishing his or her innocence, they must yield to the Charter guarantee of a fair trial. The common law rule of informer privilege, however, does not offend this principle. From its earliest days, the rule has affirmed the priority of the policy of the law “that an innocent man is not to be condemned when his innocence can be proved” by permitting an exception to the privilege where innocence is at stake: Marks v. Beyfus, supra. It is therefore not surprising that this Court has repeatedly referred to informer privilege as an example of the policy of the law that the innocent should not be convicted, rather than as a deviation from it.
25 I find no inconsistency between the Charter right to disclosure of Crown documents affirmed in Stinchcombe, supra, and the common law rule of informer privilege.
(f) Informer Privilege and Challenges to Search Warrants
26 Where the accused seeks to establish that a search warrant was not supported by reasonable grounds, the accused may be entitled to information which may reveal the identity of an informer notwithstanding informer privilege “in circumstances where it is absolutely essential”: Scott, supra, at p. 996. “Essential” circumstances exist where the accused establishes the “innocence at stake ” exception to informer privilege. Such a case might arise, for example, where there is evidence suggesting that the goods seized in execution of the warrant were planted. To establish that the informer planted the goods or had information as to how they came to be planted, the accused might properly seek disclosure of information that may incidentally reveal the identity of the informer.
27 Absent a basis for concluding that disclosure of the information that may reveal the identity of the informer is necessary to establish the innocence of the accused, the information remains privileged and cannot be produced, whether on a hearing into the reasonableness of the search or on the trial proper.
(g) Judicial Editing
28 The ultimate issue on this appeal is whether the trial judge erred in editing the tip sheet to remove references to the informer’s identity and in ordering the edited sheet disclosed to the appellant. In addressing this question, I have regard to the following propositions, 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 it and are bound to uphold it. The only exception to the privilege is found where there is a basis to conclude that the information may be necessary to establish the innocence of the accused. The scope of the rule extends not only to the name of the informer, but to any details which might reveal the informer’s identity. It is virtually impossible for the court to know what details may reveal the identity of an anonymous informer. The same considerations apply on challenges to search warrants or wiretap authorizations.
29 These considerations suggest that anonymous tip sheets should not be edited with a view to disclosing them to the defence unless the accused can bring himself within the innocence at stake exception. To do so runs the risk that the court will deprive the informer of the privilege which belongs to him or her absolutely, subject only to the “innocence at stake” exception. It also undermines the efficacy of programs such as Crimestoppers, which depend on guarantees of anonymity to those who volunteer information on crimes.
30 The appellant relies on judicial editing of confidential material approved in challenges to wiretap authorizations. In Garofoli, supra, Sopinka J. stated at p. 1458: “Editing . . . is essential in cases in which confidential information is included in the affidavit filed in support of an authorization.” He added, “In determining what to edit, the judge will have regard for the rule against disclosure of police informants.” A similar conclusion was reached per Cory J. in Hunter, supra.
31 These cases are distinguishable from the case at bar on two grounds. First, the informants in those cases were not anonymous, enabling the court to make judgments on what details might or might not reveal the identity of the informers. Second, the defence was seeking to review the affidavit or “Information to Obtain” filed in support of the application for the authorization, as distinguished from background documents and information. In the case at bar, the appellant had disclosure of the “Information to Obtain”. He knew the entire basis for the authorization. He wanted more -- the details of the information given by the tipster. Those details, recorded by the police officer who received the call, were contained in a separate document. In Hunter, Garofoli and Scott, the combination of the known informant and the fact that what was at issue was the very document upon which the Crown relied to sustain the warrant or authorization, supported the approval for editing. The case here is quite different.
32 There may be cases where the informer and his circumstances are known, in which the court can be certain that what remains of an informant document after editing will not reveal the informer’s identity. When, however, as in the case at bar, it is impossible to determine which details of the information provided by an informer will or will not result in that person’s identity being revealed, then none of those details should be disclosed, unless there is a basis to conclude that the innocence at stake exception applies.
(h) Procedure
33 When an accused seeks disclosure of privileged informer information on the basis of the “innocence at stake” exception, the following procedure will apply. First, the accused must show some basis to conclude that without the disclosure sought his or her innocence is at stake. If such a basis is shown, the court may then review the information to determine whether, in fact, the information is necessary to prove the accused’s innocence. If the court concludes that disclosure is necessary, the court should only reveal as much information as is essential to allow proof of innocence. Before disclosing the information to the accused, the Crown should be given the option of staying the proceedings. If the Crown chooses to proceed, disclosure of the information essential to establish innocence may be provided to the accused.
(i) Application to the Case at Bar
34 The identity of the anonymous informer was protected by informer privilege. The police and the courts were bound to protect the identity of the informant from disclosure. Given the anonymous nature of the tip, it was impossible to conclude whether the disclosure of details remaining after editing might be sufficient to reveal the identity of the informer to the accused and others who might have been involved in this crime and seeking retribution. It follows that the statement should not have been edited and ordered disclosed to the defence. The informer’s privilege required nothing short of total confidentiality. As it was not established that the identity was necessary to establish the innocence of the accused, the privilege continued in place.
(2) The Relevance Argument
35 Southin J.A. in the Court of Appeal, speaking for the court on this point, allowed the appeal on the ground that the tip was merely part of the narrative and formed no part of the Crown’s case. She noted it was not necessary to the Crown’s application for a search warrant. What made the issuance of a search warrant reasonable was not the tip, but the observations of the police officer who subsequently investigated the locale with his dog. Nor did the tip form part of the Crown’s case against the appellant, which rested solely on other evidence. In response, the appellant argues that since the informer’s information was not clearly irrelevant, and might conceivably be of assistance to the appellant, it fell within the Stinchcombe rule and disclosure was required.
36 In view of my conclusion that the informer privilege deprives the appellant of any right to disclosure which might otherwise have arisen under Stinchcombe, it is not necessary for me to consider this argument.
B. Did the Trial Judge Err in Declining to Allow the Crown to Delete the Reference to the Informer from the Material in Support of the Warrant?
37 The trial judge declined to permit the Crown to withdraw the reference to the tip from the “Information to Obtain” and defend the warrant without reference to it. In his view, this could not be done unless the appellant consented. In my view, this was an error.
38 The issue before the trial judge was whether there were reasonable grounds for the issuance of the warrant. If the Crown wished to limit its defence of the reasonableness of the warrant and subsequent search to particular grounds, it was entitled to do so. At the end of the day, the task of the judge was to make a ruling on reasonableness on the basis of the information relied on by the Crown.
39 If a warrant could not be sustained on less than all the information that was before the issuing officer, warrants based on edited supporting material could never be upheld. The law, however, is otherwise. As Sopinka J. stated in Garofoli, supra, at p. 1461: “If the Crown can support the authorization on the basis of the material as edited, the authorization is confirmed.”
40 In the case at bar, the appellant has not brought himself within the “innocence at stake” exception. Therefore, the trial judge should have permitted the Crown to defend the warrant on the material in the “Information to Obtain” with the reference to the Crime Stoppers’ tip deleted.
V. Conclusion
41 I would dismiss the appeal and confirm the order for a new trial.
//L’Heureux-Dubé J.//
The following are the reasons delivered by
42 L’Heureux-Dubé J. -- I have read the reasons for judgment of McLachlin J. Like her, I am of the view that the details of the informer’s tip should not have been disclosed in this case. I also agree with her description of the general principles and procedure to be considered when the defence makes a request to see an anonymous tip. As it is not strictly necessary to do so, however, I prefer not to express an opinion regarding the Charter argument and other issues raised in her reasons.
43 I would dispose of the appeal as proposed by McLachlin J.
Appeal dismissed.
Solicitor for the appellant: Michael D. Sanders, Vancouver.
Solicitor for the respondent: George Thomson, Ottawa.
Solicitors for the intervener: Clay & Company, Victoria.