R. v. Barros (R.), [2011] N.R. TBEd. OC.027

• Judge: McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ.
• Court: Supreme Court (Canada)
• Case Date: January 25, 2011
• Jurisdiction: Canada (Federal)
• Citations: [2011] N.R. TBEd. OC.027;2011 SCC 51

R. v. Barros (R.) (SCC) - Criminal law - Informer privilege

MLB being edited

Currently being edited for N.R. - judgment temporarily in rough form.

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

Temp. Cite: [2011] N.R. TBEd. OC.027

Ross Barros (appellant) v. Her Majesty The Queen (respondent) and Director of Public Prosecutions, Attorney General of Ontario, Canadian Association of Chiefs of Police, Canadian Crime Stoppers Association, Canadian Civil Liberties Association and Criminal Lawyers' Association of Ontario (intervenors)

(33727; 2011 SCC 51; 2011 CSC 51)

Indexed As: R. v. Barros (R.)

Supreme Court of Canada

McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ.

October 26, 2011.

Summary:

Qureshi was charged with drug trafficking and firearms offences. His counsel retained Barros, a retired police officer working as a private investigator, to look into the Crown's case. Barros decided to take steps to discover the identity of a confidential police informer. Among other things he met with Qureshi's associates, told them that he was going to find out who had informed on Qureshi, and asked them to provide their cell phone numbers. Barros eventually arranged a meeting with an investigating officer (Sgt. Brezinski), at which he advised that he knew the identity of the informer. Barros recalled cases from his time on the police force where charges against an accused were dropped in order to protect an informer once the informer's identity was discovered. Barros said that although he had not told anyone about the informer's identity, he would eventually have to tell Qureshi's counsel. Barros was charged with one count of attempting to obstruct justice contrary to s. 139(2) of the Criminal Code by taking investigative steps to identify a confidential police source "for the purpose of interfering with criminal proceedings" against Qureshi. He was also charged with two counts of extortion contrary to s. 346(1.1)(b) of the Code, firstly for attempting to induce Sgt. Brezinski to withdraw the criminal proceedings against Qureshi and, secondly, for inducing or attempting to induce the associates of Qureshi to give him personal information including cell phone numbers.

The Alberta Court of Queen's Bench, in a decision reported at [2007] A.R. Uned. 512, directed a verdict of acquittal on the obstruction charge. The two counts of extortion proceeded and Barros was acquitted on those charges. The Crown appealed both the directed verdict on the charge of obstruction of justice and the acquittals on the two charges of extortion.

The Alberta Court of Appeal, Berger, J.A., dissenting, in a decision reported at (2010), 477 A.R. 127; 483 W.A.C. 127, allowed the appeal and ordered a new trial on all three charges. Barros apealed.

The Supreme Court of Canada, Fish and Cromwell, JJ., dissenting in part, allowed the appeal in part. While the court disagreed with the majority of the Court of Appeal on the scope of the informer privilege, it agreed that the trial judge erred with respect to her legal analysis of the elements of obstruction of justice (count 1) and extortion in respect of the dealings of Barros with the police (count 2). On those two counts, the court affirmed the order for a new trial. The second extortion charge related to Barros' dealings with members of Qureshi's group (count 3). It was rejected on the facts by the trial judge, who found the Crown's key witness to be unreliable. The legal errors that tainted the trial judge's view of extortion had no bearing on her reasons for the acquittal on count 3. The Crown had no right of appeal from the trial judge's findings of fact. In ordering a new trial on count 3, the Court of Appeal engaged in a reweighing of the evidence and thereby erred. The appeal was therefore allowed with respect to count 3, the order for a new trial on count 3 was set aside and the verdict of acquittal was restored. In all other respects, the appeal was dismissed.

Civil Rights - Topic 3133

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right of accused to make full answer and defence - The trial judge held that informer privilege did not restrict a defence investigation into the identity of a police informant, and further, that the attempt to fetter such a defence investigation would violate the constitutional right of an accused to a full answer and defence guaranteed by s. 7 of the Charter - A majority of the Alberta Court of Appeal disagreed - In its view, informer privilege prohibited the accused or anyone on his behalf from making efforts even wholly independent of the prosecution to discover the identity of an informant - The Supreme Court of Canada held that the Court of Appeal's view of the scope of informer privilege went too far - The court stated that "An accused is not restricted by the narrow parameters of the 'innocence at stake' exception when making his or her own enquiries independently of the state but nor can it be said, as the trial judge seems to have concluded, that all attempts by the accused to identify a confidential informer are constitutionally protected. What is constitutionally protected is the s. 7 right to make full answer and defence. Not all attempts to identify an informant will be linked to this right. It will depend on the circumstances. Some defence enquiries may of course amount to an obstruction of justice, or extortion, depending on the manner in which the enquiries are carried out and their intended purpose and the totality of the circumstances of the case" - See paragraphs 1 to 3.

Civil Rights - Topic 3133

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right of accused to make full answer and defence - The Supreme Court of Canada stated that "There is no authority for the proposition that the substantive rule of confidentiality means that an accused and his representatives are prohibited from attempting to identify an informant for a lawful purpose and by lawful means. From the perspective of an accused, discovery of the identity of a source, and the circumstances under which his or her information was obtained by the police, may legitimately play a role in making out a full answer and defence. ... An accused is within his or her rights to gather whatever information may raise a reasonable doubt even where the conditions triggering the 'innocence at stake' exception are not satisfied. That exception pertains to disclosure by the state of the informer's identity, not to information obtained by the defence through its own resources. Criminalizing efforts by the defence to ascertain the identity of the source independently of the Crown would in many cases render illusory the right to challenge his or her 'informer' status. The Crown ought not to be able to rely on the prohibition against disclosure by the state of allegedly privileged information to prevent an independent defence investigation that may yield information which will result in the rejection of the privilege claim itself. The majority in the court below held that apart from the 'innocence at stake' exception an accused has no 'right' to disclosure of a confidential informant's identity. This is true, but the question is not whether he has a 'right' to disclosure. He certainly has a 'right' under s. 7 of the Charter to defend himself and, generally speaking, what is not prohibited by law (or professional ethics in the case of defence counsel) is permitted. Whether an investigation has crossed a line into obstruction of justice must be determined on a case-by-case evaluation of the totality of circumstances, which may include the methods and purpose of the defence investigation, and the use to which any information obtained is put" - See paragraphs 37 to 44.

Criminal Law - Topic 128

General principles - Rights of accused - Right to make full answer and defence - [See both Civil Rights - Topic 3133 ].

Criminal Law - Topic 522

Offences against the administration of law and justice - Obstructing or perverting course of justice - Attempting to obstruct justice - Qureshi was charged with drug trafficking and firearms offences - His counsel retained Barros, a retired police officer working as a private investigator, to look into the Crown's case - Barros decided to take steps to discover the informer's identity - Barros eventually arranged a meeting with an investigating officer (Sgt. Brezinski), at which he advised that he knew the identity of the informer - Barros recalled cases from his time on the police force where charges against an accused were dropped in order to protect an informer once the informer's identity was discovered - Barros said that although he had not told anyone about the informer's identity, he would eventually have to tell Qureshi's counsel - Barros was charged with attempting to obstruct justice by taking investigative steps to identify a confidential police source "for the purpose of interfering with criminal proceedings" against Qureshi - The trial judge directed a verdict of acquittal - The Supreme Court of Canada upheld the Alberta Court of Appeal's order for a new trial on this charge - The court stated that "In characterizing the conduct of Mr. Barros as mere 'preparation', the trial judge failed to take into account the entire chain of events. There was evidence which, if believed, went far beyond the preparation stage. ... while I do not agree with the Court of Appeal that 'undermining the privilege by attempting to identify an informer prima facie amounts to obstruction', I do agree that a trier of fact might reasonably conclude that the evidence in this case taken as a whole, if believed, demonstrated an intent to obstruct unlawfully the trial on the merits of the charges against Qureshi. I conclude that to direct a verdict of acquittal on the obstruction of justice charge was an error of law justifying a new trial" - See paragraphs 45 to 51.

Criminal Law - Topic 523

Offences against the administration of law and justice - Obstructing or perverting course of justice - What constitutes - [See Criminal Law - Topic 522 ].

Criminal Law - Topic 528

Offences against the administration of law and justice - Obstructing or perverting course of justice - Intention or mens rea - [See Criminal Law - Topic 522 ].

Criminal Law - Topic 1752

Offences against property - Extortion - What constitutes - [See Criminal Law - Topic 1754 ].

Criminal Law - Topic 1754

Offences against property - Extortion - Evidence - Qureshi was charged with drug trafficking and firearms offences - His counsel retained Barros, a retired police officer working as a private investigator, to look into the Crown's case - Barros decided to take steps to discover the informer's identity - Barros eventually arranged a meeting with an investigating officer (Sgt. Brezinski), at which he advised that he knew the identity of the informer - Barros recalled cases from his time on the police force where charges against an accused were dropped in order to protect an informer once the informer's identity was discovered - Barros said that although he had not told anyone about the informer's identity, he would eventually have to tell defence counsel - Barros was charged with extortion for attempting to induce Sgt. Brezinski to withdraw the criminal proceedings against Qureshi - The trial judge acquitted Barros of the charge - The Supreme Court of Canada affirmed an order of the Alberta Court of Appeal for a new trial on this count - The trial judge made two errors of law that vitiated her verdict of acquittal: (i) she failed to consider elements of Barros' conduct in the context of his entire course of behaviour; and (ii) she adopted an erroneously narrow view of what conduct was in law capable of constituting a threat or menace - A veiled reference could constitute a threat if it was sufficient, in light of all the circumstances, to convey to the complainant the consequences which he or she feared or would prefer to avoid - The question was, as a matter of law, what would a reasonable person in the position of Sgt. Brezinski understand - The trial judge erred in law in concluding that the indirect suggestions and veiled references put forward by Barros did not in the circumstances here "qualify", as a matter of law, as "threats" for the purpose of the extortion offence - As the trial judge erred in her legal analysis of Barros' conduct, her consequential and dependent finding of his lack of the requisite intent could not stand - As to the absence of any reasonable justification or excuse, the trial judge again ignored the legal requirement to view the individual pieces of evidence in the context of the case in its entirety and to take into consideration all of the circumstances leading up to and including the meeting with Sgt. Brezinski - The trial judge erred in law in failing to consider the issue of the threats or menaces in the context of the Barros' conduct in its entirety and, in particular, of the longstanding relationship between the two men - In the result, the trial judge committed errors of law in her analysis of the elements in the extortion charge - The Crown was therefore entitled to appeal under s. 676(1) of the Criminal Code, and was entitled to a new trial - See paragraphs 52 to 76.

Criminal Law - Topic 4440

Procedure - Verdicts - Discharges and dismissals - Directed verdicts - [See Criminal Law - Topic 522 ].

Criminal Law - Topic 4560

Procedure - Trial - Motions - Motion for a directed verdict - [See Criminal Law - Topic 522 ].

Criminal Law - Topic 4828

Appeals - Indictable offences - Right of appeal - By Crown - [See Criminal Law - Topic 4944 ].

Criminal Law - Topic 4944

Appeals - Indictable offences - New trials - When available - General - Barros was acquitted of two counts of extortion - The Alberta Court of Appeal ordered a new trial on both charges - Barros appealed - The Supreme Court of Canada affirmed the order for a new trial on the first extortion count, holding that the trial judge committed errors of law in her analysis of the elements in the extortion charge - However, with respect to the second extortion count, the court allowed Barros' appeal, set aside the order for a new trial, and restored the verdict of acquittal - Although the trial judge viewed the evidence under the second extortion count through the same flawed legal lens as she applied to first extortion count, there was an important difference - With respect to the second extortion count, the only inculpatory evidence from a witness on the receiving end of the threats was disbelieved - The trial judge thus rejected the existence of any factual foundation to which her erroneous legal test could be applied - The Crown was not entitled to a retrial based on a trial judge's flawed legal analysis that had no impact on the outcome of the case - The Crown had no right of appeal from the trial judge's findings of fact - In ordering a new trial on this count, the Court of Appeal engaged in a reweighing of the evidence and thereby erred - See paragraphs 6 and 77 to 82.

Evidence - Topic 4150

Witnesses - Privilege - Privileged topics - Identity or location of police informants - [See both Civil Rights - Topic 3133 ].

Cases Noticed:

R. v. Hardy (1794), 24 St. Tr. 199, refd to. [para. 28].

Marks v. Beyfus (1890), 25 Q.B.D. 494 (C.A.), refd to. [para. 28].

R. v. Leipert (R.D.), [1997] 1 S.C.R. 281; 207 N.R. 145; 85 B.C.A.C. 162; 138 W.A.C. 162, refd to. [para. 28].

R. v. Basi (U.S.) et al., [2009] 3 S.C.R. 389; 395 N.R. 240; 277 B.C.A.C. 305; 469 W.A.C. 305; 2009 SCC 52, refd to. [para. 28].

Bisaillon v. Keable et al., [1983] 2 S.C.R. 60; 51 N.R. 81, refd to. [para. 30].

R. v. Hunter (1987), 19 O.A.C. 131; 57 C.R.(3d) 1 (C.A.), refd to. [para. 30].

R. v. Scott, [1990] 3 S.C.R. 979; 116 N.R. 361; 43 O.A.C. 277, refd to. [para. 30].

Named Person v. Vancouver Sun - see Vancouver Sun et al. v. Canada (Attorney General) et al.

Vancouver Sun et al. v. Canada (Attorney General) et al., [2007] 3 S.C.R. 253; 368 N.R. 112; 247 B.C.A.C. 1; 409 W.A.C. 1; 2007 SCC 43, refd to. [para. 30].

R. v. McCormack (W.T.) et al., [2009] O.T.C. Uned. W83; 2009 CanLII 76382 (Sup. Ct.), refd to. [para. 33].

R. v. Broyles, [1991] 3 S.C.R. 595; 131 N.R. 118; 120 A.R. 189; 8 W.A.C. 189, refd to. [para. 33].

R. v. Davies (1982), 1 C.C.C.(3d) 299 (Ont. C.A.), refd to. [para. 33].

R. v. Babes (G.) et al. (2000), 161 O.A.C. 386; 146 C.C.C.(3d) 465 (C.A.), refd to. [para. 33].

R. v. National Post et al., [2010] 1 S.C.R. 477; 401 N.R. 104; 262 O.A.C. 1; 2010 SCC 16, refd to. [para. 35].

Carey v. Ontario et al., [1986] 2 S.C.R. 637; 72 N.R. 81; 20 O.A.C. 81, refd to. [para. 35].

R. v. Hirschboltz (G.A.), [2006] W.W.R. 174; 243 Sask.R. 169; 2004 SKQB 17, refd to. [para. 37].

R. v. Hearn and Fahey, [1989] 2 S.C.R. 1180; 102 N.R. 130; 80 Nfld. & P.E.I.R. 199; 249 A.P.R. 199, refd to. [para. 46].

R. v. Beaudry (A.), [2007] 1 S.C.R. 190; 356 N.R. 323; 216 C.C.C.(3d) 353; 2007 SCC 5, refd to. [para. 46].

R. v. Charemski (J.), [1998] 1 S.C.R. 679; 224 N.R. 120; 108 O.A.C. 126, refd to. [para. 48].

R. v. Bigras (E.) et al., [2004] O.A.C. Uned. 426; 2004 CanLII 21267 (C.A.), refd to. [para. 48].

R. v. Graveline (R.), [2006] 1 S.C.R. 609; 347 N.R. 268; 2006 SCC 16, refd to. [paras. 52, 103, 106].

R. v. Biniaris (J.), [2000] 1 S.C.R. 381; 252 N.R. 204; 134 B.C.A.C. 161; 219 W.A.C. 161; 2000 SCC 15, refd to. [para. 52].

R. v. G.B. et al. (No. 3), [1990] 2 S.C.R. 57; 111 N.R. 62; 86 Sask.R. 142, refd to. [para. 52].

R. v. Natarelli, [1967] S.C.R. 539, refd to. [para. 53].

R. v. H.A. et al. (2005), 202 O.A.C. 54; 206 C.C.C.(3d) 233 (C.A.), leave to appeal refused [2006] 1 S.C.R. v; 352 N.R. 197; 221 O.A.C. 400, refd to. [para. 55].

R. v. Royz (E.) (2008), 248 O.A.C. 361; 2008 ONCA 584, refd to. [para. 55].

R. v. Davis (G.N.), [1999] 3 S.C.R. 759; 248 N.R. 44; 182 Nfld. & P.E.I.R. 78; 554 A.P.R. 78, refd to. [para. 61].

R. v. McClure (1957), 22 W.W.R.(N.S.) 167 (Man. C.A.), refd to. [paras. 61, 116].

R. v. Hodson (B.S.) (2001), 281 A.R. 76; 248 W.A.C. 76; 92 Alta. L.R.(3d) 262; 2001 ABCA 111, refd to. [para. 61].

R. v. Pelletier (R.) (1992), 44 Q.A.C. 168; 71 C.C.C.(3d) 438 (C.A.), refd to. [para. 61].

R. v. Vezeau, [1977] 2 S.C.R. 277; 8 N.R. 235, refd to. [para. 79].

R. v. Sutton (K.M.), [2000] 2 S.C.R. 595; 262 N.R. 384; 230 N.B.R.(2d) 205; 593 A.P.R. 205; 2000 SCC 50, refd to. [paras. 79, 106].

R. v. Rousseau, [1985] 2 S.C.R. 38; 60 N.R. 278, refd to. [para. 100].

R. v. Walker (B.G.), [2008] 2 S.C.R. 245; 375 N.R. 228; 310 Sask.R. 305; 423 W.A.C. 305; 2008 SCC 34, refd to. [para. 101].

R. v. Mahalingan (R.), [2008] 3 S.C.R. 316; 381 N.R. 199; 243 O.A.C. 252; 2008 SCC 63, refd to. [para. 104].

R. v. N.N. (2008), 257 B.C.A.C. 304; 432 W.A.C. 304; 2008 BCCA 300, refd to. [para. 116].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7 [para. 1].

Criminal Code, R.S.C. 1985, c. C-46, sect. 139, sect. 346, sect. 676(1)  [para. 17].

Authors and Works Noticed:

Hubbard, Robert W., Magotiaux, Susan, and Duncan, Suzanne M., The Law of Privilege in Canada (2006) (2011 Looseleaf Update, Release 12), pp. 2-43, 2-44 [para. 37].

Watt, David, Manual of Criminal Jury Instructions (2005), generally [para. 53].

Counsel:

Hersh Wolch, Q.C., for the appellant;

James C. Robb, Q.C., for the respondent;

Nancy L. Irving and François Lacasse, for the intervenor, the Director of Public Prosecutions;

Paul S. Lindsay, for the intervenor, the Attorney General of Ontario;

Derek Lai and Greg Preston, for the intervenor, the Canadian Association of Chiefs of Police;

Robert S. Gill, for the intervenor, the Canadian Crime Stoppers Association;

Anil K. Kapoor and Senem Ozkin, for the intervenor, the Canadian Civil Liberties Association;

Susan M. Chapman and Jennifer Micallef, for the intervenor, the Criminal Lawyers' Association of Ontario.

Solicitors of Record:

Wolch, Hursh, deWit, Silverberg & Watts, Calgary, Alberta, for the appellant;

Attorney General of Alberta, Edmonton, Alberta, for the respondent;

Public Prosecution Service of Canada, Ottawa, Ontario, for the intervenor, the Director of Public Prosecutions;

Attorney General of Ontario, Toronto, Ontario, for the intervenor, the Attorney General of Ontario;

Edmonton Police Service, Edmonton, Alberta, for the intervenor, the Canadian Association of Chiefs of Police;

Clay & Company, Victoria, B.C., for the intervenor, the Canadian Crime Stoppers Association;

Kapoor Barristers, Toronto, Ontario, for the intervenor, the Canadian Civil Liberties Association;

Green & Chercover, Toronto, Ontario, for the intervenor, the Criminal Lawyers' Association of Ontario.

This appeal was heard on January 25, 2011, before McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ., of the Supreme Court of Canada. The judgment of the Supreme Court was delivered in both official languages on October 26, 2011, including the following opinions:

Binnie, J. (McLachlin, C.J.C., LeBel, Deschamps, Abella, Charron and Rothstein, JJ., concurring) - see paragraphs 1 to 83;

Fish, J., dissenting in part - see paragraphs 84 to 104;

Cromwell, J., dissenting in part - see paragraphs 105 to 126.