R. v. Leipert (R.D.), (1997) 207 N.R. 145 (SCC)

• Judge: Cory, McLachlin, Iacobucci and Major, JJ.
• Court: Supreme Court (Canada)
• Case Date: February 06, 1997
• Jurisdiction: Canada (Federal)
• Citations: (1997), 207 N.R. 145 (SCC);207 NR 145;[1997] 3 WWR 457;JE 97-357;112 CCC (3d) 385;143 DLR (4th) 38;1997 CanLII 367 (SCC);33 WCB (2d) 229;41 CRR (2d) 266;[1997] ACS no 14;[1997] CarswellBC 101;138 WAC 162;85 BCAC 162;4 CR (5th) 259;[1997] SCJ No 14 (QL);[1997] 1 SCR 281

R. v. Leipert (R.D.) (1997), 207 N.R. 145 (SCC)

MLB headnote and full text

[French language version follows English language version]

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

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Richard Dean Leipert (appellant) v. Her Majesty The Queen (respondent) and Greater Vancouver Crime Stoppers Association (intervenor)

(File No. 25293)

Indexed As: R. v. Leipert (R.D.)

Supreme Court of Canada

Lamer, C.J.C., La Forest,

L'Heureux-Dubé, Sopinka, Gonthier,

Cory, McLachlin, Iacobucci and

Major, JJ.

February 6, 1997.

Summary:

After execution of a search warrant, the accused was charged with cultivation of marijuana and possession of marijuana for the purpose of trafficking. The information filed to obtain the warrant disclosed the receipt of a Crime Stoppers tip that the accused was growing marijuana. At trial, the Crown refused to disclose the Crime Stoppers document reporting the tip 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 the request because the defence 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 Crown appealed.

The British Columbia Court of Appeal, in a decision reported at 74 B.C.A.C. 271; 121 W.A.C. 271, allowed the appeal and ordered a new trial. The accused appealed.

The Supreme Court of Canada dismissed the appeal and confirmed the order for a new trial. The court held that the document should not have been edited and ordered disclosed to the defence. Further, the trial judge should have permitted the Crown to defend the warrant on the material in the Information to Obtain with reference to the Crime Stoppers tip deleted.

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 -[See fourth Evidence - Topic 4150 ].

Criminal Law - Topic 3099

Special powers - Issue of search warrants - Confidentiality of supporting material - [See first and fifth Evidence - Topic 4150 ].

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - [See fourth and seventh Evi­dence - Topic 4150 ].

Evidence - Topic 4150

Witnesses - Privilege - Privileged topics - Identity of police informants - After exe­cution of a search warrant, the accused was charged with cultivation of marijuana and possession of marijuana for the pur­pose of trafficking - The information filed to obtain the warrant disclosed the receipt of a Crime Stoppers tip that the accused was growing marijuana - At trial, the Crown refused to disclose the Crime Stoppers document reporting the tip on the ground of informer privilege - The trial judge viewed the document, attempted to edit out all references to the informer's identity, then ordered disclosure - The Crown asked to rely on the warrant with­out reference to the tip - The trial judge refused the request because the accused did not consent - The Supreme Court of Canada held that the document should not have been edited and ordered disclosed - Further, the trial judge should have per­mitted the Crown to defend the warrant on the material in the Information with reference to the Crime Stoppers tip deleted.

Evidence - Topic 4150

Witnesses - Privilege - Privileged topics - Identity of police informants - The Supreme Court of Canada stated that "[t]he [informer] privilege belongs to the Crown ... However, the Crown cannot, without the informer's consent, waive the privilege either expressly or by implication by not raising it ... In that sense, it also belongs to the informer ... 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 them" - See paragraphs 15 and 16.

Evidence - Topic 4150

Witnesses - Privilege - Privileged topics - Identity of police informants - The Supreme Court of Canada stated that the Crown and the court were bound not to reveal an undisclosed informant's identity, subject only to the "innocence at stake" exception - Informer privilege prevented not only disclosure of the informant's name, but of any information which might implicitly reveal his or her identity - In order to raise the "innocence at stake" exception to informer privilege, there had to be a basis on the evidence for con­cluding that disclosure of the informer's identity was necessary to demonstrate the innocence of the accused - See paragraphs 17 to 22.

Evidence - Topic 4150

Witnesses - Privilege - Privileged topics - Identity of police informants - The Supreme Court of Canada considered the argument that the Charter introduced another exception to the informer privilege rule based on the right to full disclosure in aid of the Charter right to make full answer and defence - The court stated that "[t]o 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 ... I find no inconsistency between the Charter right to disclosure of Crown documents ... and the common law rule of informer privilege" - See para­graphs 23 to 25.

Evidence - Topic 4150

Witnesses - Privilege - Privileged topics - Identity of police informants - The Supreme Court of Canada stated that "[w]here 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' ... 'Essential' circumstances exist where the accused establishes the 'innocence at stake' excep­tion to informer privilege ... 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" - See paragraphs 26 and 27.

Evidence - Topic 4150

Witnesses - Privilege - Privileged topics - Identity of police informants - The Supreme Court of Canada stated 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 Crime Stoppers, which depend on guarantees of anonymity to those who volunteer infor­mation on crimes" - See paragraph 29.

Evidence - Topic 4150

Witnesses - Privilege - Privileged topics - Identity of police informants - The Supreme Court of Canada stated that "[w]hen 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" - See paragraph 33.

Cases Noticed:

R. v. Stinchcombe, [1991] 3 S.C.R. 326; 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161, refd to. [para. 6].

R. v. Hunter (1987), 19 O.A.C. 131; 57 C.R.(3d) 1 (C.A.), dist. [para. 9].

Bisaillon v. Keable et al., [1983] 2 S.C.R. 60; 51 N.R. 81, consd. [para. 10].

R. v. Scott, [1990] 3 S.C.R. 979; 116 N.R. 361; 43 O.A.C. 277, refd to. [para. 10].

People v. Callen (1987), 194 Cal. App.3d 558, refd to. [para. 11].

Canada (Solicitor General) et al. v. Royal Commission of Inquiry into the Confi­dentiality of Health Records in Ontario et al., [1981] 2 S.C.R. 494; 38 N.R. 588; 128 D.L.R.(3d) 193, refd to. [para. 15].

R. v. Garofoli et al., [1990] 2 S.C.R. 1421; 116 N.R. 241; 43 O.A.C. 1; 36 Q.A.C. 161, dist. [para. 18].

R. v. Hardy (D.A.) (1994), 45 B.C.A.C. 146; 72 W.A.C. 146 (C.A.), refd to. [para. 18].

Marks v. Beyfus (1890), 25 Q.B.D. 494 (C.A.), refd to. [para. 20].

R. v. Chiarantano, [1990] O.J. No. 2603 (C.A.), affd. [1991] 1 S.C.R. 906, refd to. [para. 21].

R. v. O'Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1, refd to. [para. 24].

L.L.A. v. Beharriell, [1995] 4 S.C.R. 536; 190 N.R. 329; 88 O.A.C. 241, refd to. [para. 24].

R. v. Seaboyer, [1991] 2 S.C.R. 577; 128 N.R. 81; 48 O.A.C. 81, refd to. [para. 24].

Authors and Works Noticed:

Sopinka, J., Lederman, S.N., and Bryant, Alan W., The Law of Evidence in Canada (1992), pp. 805, 806 [para. 12].

Tanovich, David M., When Does Stinch­combe Demand that the Crown Reveal the Identity of a Police Informer? (1995), 38 C.R.(4th) 202, generally [para. 23].

Counsel:

Michael D. Sanders, for the appellant;

S. David Frankel, Q.C., and Nancy M. Young, for the respondent;

Robert S. Gill, for the intervener.

Solicitors of Record:

Michael D. Sanders, Vancouver, British Columbia, for the appellant;

George Thomson, Deputy Attorney Gen­eral of Canada, Ottawa, Ontario, for the respondent;

Clay & Company, Victoria, British Columbia, for the intervener.

This appeal was heard on November 28, 1996, before Lamer, C.J.C., La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major, JJ., of the Supreme Court Canada.

The judgment of the Supreme Court of Canada was delivered in both official lan­guages on February 6, 1997, and the fol­lowing opinions were filed:

McLachlin, J. (Lamer, C.J.C., La Forest, Sopinka, Gonthier, Cory, Iacobucci and Major, JJ., concurring) - see paragraphs 1 to 41;

L'Heureux-Dubé, J. - see paragraphs 42 to 43.