R. v. Leipert [1997] 1 S.C.R. 281: - Police-informer privilege

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.

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