Standard for piercing informer privilege was innocence at stake test

Several police officers were charged with crimes pertaining to alleged misconduct during Royal Canadian Mounted Police (RCMP) investigation into gang-related homicide that involved several dozen confidential informers. Officers brought pre-trial application before judge for declaration that might reveal identity of confidential informers, which was granted. Crown resisted application on grounds that officers could only reveal identity of confidential informers if they satisfied innocence at stake test, and after declaration granted, Crown, RCMP and confidential informer brought proceedings to determine whether communications authorized constituted disclosures within meaning of s. 37 of Canada Evidence Act. Judge found that she had jurisdiction to hear s. 37 objection but dismissed objection on basis of her initial ruling on officers’ application. Crown, RCMP and confidential informer appealed rejection of s. 37 objection, which was dismissed on basis that order that was appealed was civil rather than criminal in nature and appeals court also held that Crown could not object to declaratory order under s. 37 of Act, because it was not disclosure within meaning of that section. Crown, RCMP and confidential informer appealed. Appeals allowed. Application in this case was not brought under ordinary McClure process, instead officers sought pre-trial remedy of declaratory relief, relating not to scope of privilege, but rather to who was entitled to access information that everyone agrees was within scope and these anomalies led Crown to bring proceedings under s. 37 of Act. Standard for piercing informer privilege was innocence at stake test, which was accordingly onerous as set out in McClure and privilege should only be infringed where core issues going to guilt of accused were involved and there was genuine risk of wrongful conviction. In this case, police officers at no time have argued that any privileged information in their possession met test nor that information relating to confidential informers was genuinely relevant to their defence. Crown was correct that innocence at stake paradigm applied in this case, because officer’s defence counsel were outside circle of privilege.

R. v. Brassington (2018), 2018 CarswellBC 1916, 2018 CarswellBC 1917, 2018 SCC 37, 2018 CSC 37, Wagner C.J.C., Abella J., Moldaver J., Karakatsanis J., Gascon J., Côté J., Brown J., Rowe J., and Martin J. (S.C.C.).