R. v. Brassington

Coram:

• Unanimous: Justice Rosalie Silberman Abella (Wagner C.J., Moldaver, Karakatsanis, Gascon, Côté, Brown, Rowe, and Martin JJ. concurring)

Case Summary:

This case dealt with the limits of “informer privilege” and whether police officers charged with crimes could reveal information about confidential informers to their lawyers as part of their defense.

Key Legal Issues:

1. Informer Privilege: The protection of the identities and information provided by confidential informers, which is critical to the justice system. The privilege is nearly absolute, with very limited exceptions.
2. Solicitor-Client Privilege vs. Informer Privilege: Whether the right of an accused to consult freely with their lawyer (protected by solicitor-client privilege) can override informer privilege in any circumstances.

Background:

• In 2011, four RCMP officers from British Columbia were charged with breach of trust, fraud, and obstruction of justice in connection with their handling of a protected witness in the “Surrey Six” gang murder case.
• When charged, the officers were prohibited from disclosing any information that might reveal the identities of confidential informers, even to their defense lawyers. The Crown argued that since no confidential informers were directly involved in the officers’ alleged criminal conduct, this information was irrelevant to their defense and should remain protected.
• The officers, on the other hand, argued that they should be allowed to discuss the information with their lawyers to ensure a fair defense.

Supreme Court of Canada Ruling:

Unanimous Opinion (Justice Abella):

• Affirmation of Informer Privilege: The Court reaffirmed the near-absolute nature of informer privilege, emphasizing its critical role in protecting individuals who provide information to law enforcement and in ensuring the integrity of the justice system.
• No Exception for Police Officers: Justice Abella noted that police officers, due to their unique position of trust, are subject to the same restrictions as any other accused when it comes to informer privilege. The Court held that just because these officers had access to privileged information due to their role in law enforcement, it did not entitle them to disclose it in a criminal defense unless it met the strict “innocence at stake” exception.
• Innocence at Stake Exception: This exception allows for the disclosure of informer-privileged information only when there is a real risk that an innocent person will be wrongfully convicted without that information. The Court found that the officers did not argue convincingly that this risk existed in their case, and therefore, the privilege remained intact.
• Relevance to Defense: The Court underscored that the officers’ argument that the informer-related information “might” be relevant to their defense was insufficient to override informer privilege. The information’s potential relevance did not justify a breach of this strong legal protection.

The Supreme Court’s decision clarified that informer privilege is exceptionally strong, protecting the identities and information of confidential informers even against disclosure to an accused’s own defense lawyer. The only exception remains when there is a clear and present danger of a wrongful conviction, which was not demonstrated in this case. Thus, the officers were not permitted to share informer-privileged information with their lawyers, upholding the integrity of informer privilege within the Canadian legal system.