Subject: Supreme Court of Canada - Decisions - R. v. Leipert
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Source: http://csc.lexum.umontreal.ca/en/1997/1997rcs1-281/1997rcs1-281.html

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.