R. v. Brassington, 2018 SCC 37 – Criminal law – Defence – Disclosure

On appeal from a judgment of the British Columbia Court of Appeal (2017 BCCA 84) varying an order of Wedge J. (2016 BCSC 163).

Four police officers were charged with crimes relating to alleged misconduct during a police investigation. Prior to their trial, they applied for a declaration that they could discuss information they learned during the investigation with their defence counsel that might reveal the identity of confidential informers. The assigned case management judge granted the application, declaring that the officers could discuss any information in their possession with counsel. The Crown and the RCMP then brought proceedings to determine whether the communications authorized under the declaratory order constituted “disclosures” within the meaning of s. 37 of theCanada Evidence Act. Pursuant to s. 37(1) of the Act, the Crown may object to disclosures on public interest grounds. Section 37.1 of the Act provides a special right of appeal from a determination of an objection. Sections 37 and 37.1 apply to criminal proceedings and other matters over which Parliament has jurisdiction. The case management judge found that she had jurisdiction to hear the Crown’s objection but dismissed it. The Court of Appeal dismissed an appeal from the rejection of the s. 37 objection. It characterized the order allowing disclosure as civil rather than criminal in nature, held that an appeal under s. 37.1 was unavailable and held that the Crown could not object to the declaratory order under s. 37. The case management judge’s declaratory order and the Court of Appeal’s decision were appealed to the Court.

Held (9-0): The appeals should be allowed. The declaratory order should be set aside. An order should be granted pursuant to s. 37(6) of the Canada Evidence Act prohibiting the officers from disclosing informer privileged information to their counsel, subject to a successful innocence at stake application.

The case management judge had jurisdiction to hear the Crown’s objection to the declaratory order under s. 37 of the Canada Evidence Act and an appeal to the Court of Appeal under s. 37.1 was therefore proper. The declaratory order was criminal in nature and therefore within Parliament’s constitutional authority. In determining whether an order is civil or criminal in nature, what is relevant is not the formal title or styling of the order, but its substance and purpose. Here, the order related to the accused’s claim that declaratory relief was necessary to help them make full answer and defence in ongoing criminal proceedings, and it was issued by a criminal case management judge in connection with the rights of the parties in a pending criminal proceeding, regarding what might be done by the accused in conducting their defence. The fact that it was declaratory does not change its essential character.

Furthermore, s. 37 was the proper route for challenging the order, as it authorized a form of disclosure to which the Crown was entitled to object on public interest grounds. The interconnected purposes of ss. 37 and 37.1 are to give the Crown the ability to object to disclosures on public interest grounds, and to grant an interlocutory right of appeal where it is unsuccessful. They provide a valuable tool for the Crown to protect against disclosure of confidential and privileged information, and reflect the fact that the Crown’s ability to object to disclosures on public interest grounds was not meant to be restricted to those circumstances where the disclosure is compulsory and will occur in open court. Disclosures may be equally harmful to the public interest whether they are made in or outside of court, and whether they are made under compulsion or voluntarily.

The officers are not entitled to disclose the informer‑privileged information to their lawyers. Jurisprudence prevents piercing informer privilege unless the accused can show that his or her innocence is at stake. There is no basis for departing from that rule when the accused is a police officer. Informer privilege arises in circumstances where police receive information under a promise of confidentiality. Informers are entitled to rely on that promise. The informer privilege rule is a common law rule of long standing and it is fundamentally important to the criminal justice system. Subject to the innocence at stake exception, the privilege acts as a complete bar on the disclosure of the informer’s identity, and the police, the Crown and the courts are bound to uphold it. The standard for piercing informer privilege — the innocence at stake test — is, accordingly, onerous. The privilege should be infringed only where core issues going to the guilt of the accused are involved and there is a genuine risk of a wrongful conviction. The officers in this case did not argue that any privileged information in their possession meets the innocence at stake test. Nor did they suggest any information relating to confidential informers was genuinely relevant to their defence.

Furthermore, as previously confirmed by the Court, defence counsel are outside the circle of informer privilege, that is, the group of people who are entitled to access information covered by informer privilege. In all cases where informer privilege applies, disclosure outside the circle requires a showing of innocence at stake. Limitations placed on what the police officers can say to their lawyers do not create conflicting legal and professional duties; rather, they align with the officers’ professional duties and allow their lawyers to proceed without fear of inadvertently revealing the privileged information their clients possess. The law may require officers to exercise some degree of caution with respect to what they disclose, but that expectation does not meaningfully interfere with their relationship with counsel. The primary purpose of the right to free solicitor‑client communication in a criminal proceeding is to permit the accused and counsel to discuss issues that go to full answer and defence — “solicitor‑client communication” does not have some independent, intrinsic value over and above its relationship to full answer and defence. Like any other criminal defendant, if it becomes clear that the police officers are at genuine risk of conviction, and that this information needs to be disclosed, they can bring a McClure application.

Police officers are, when accused of crimes, entitled to expect that they will be treated no less fairly than others who are accused and given the full protection of the law. What they are not entitled to expect is that they will be treated better. There is no reason to advantage police officers who, by virtue of their positions of trust, have information that has been confided to them for safekeeping. It is not their information to exploit for personal juridical gain.

Reasons for judgment: Abella J. (Wagner C.J. and Moldaver, Karakatsanis, Gascon, Côté, Brown, Rowe and Martin JJ. concurring)

Neutral Citation: 2018 SCC 37

Docket Number: 37476