R. v. Leipert (R.D.), (1996) 74 B.C.A.C. 271 (CA)

• Judge: McEachern, C.J.B.C., Southin and Cumming, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: March 25, 1996
• Jurisdiction: British Columbia
• Citations: (1996), 74 B.C.A.C. 271 (CA)

R. v. Leipert (R.D.) (1996), 74 B.C.A.C. 271 (CA);

    121 W.A.C. 271

MLB headnote and full text

Regina (appellant) v. Richard Dean Leipert (respondent)

(CA020740)

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

British Columbia Court of Appeal

McEachern, C.J.B.C., Southin and Cumming, JJ.A.

April 12, 1996.

Summary:

The Crown appealed from the acquittal of the accused on charges of cultivating or trafficking in marijuana.

The British Columbia Court of Appeal allowed the appeal and ordered a new trial.

Criminal Law - Topic 3099

Special powers - Issue of search warrants - Confidentiality of supporting material - Paragraph 1 of an Information to obtain a search warrant stated that the police officer received a Crimestoppers tip that the accused was growing marijuana - In cross-examination, the officer said that the foundation for that paragraph was an in­formation sheet received from another officer who worked with Crimestoppers - The accused requested production of the sheet - The Crown objected on the basis that it might identify the informant - After some discussion about severing paragraph 1, the Crown invited the court to enter an acquittal - An acquittal was entered - The British Columbia Court of Appeal ordered a new trial, holding, inter alia, that the Crimestoppers sheet was subject to a Crown privilege and there was no require­ment for the production of that document.

Criminal Law - Topic 3099

Special powers - Issue of search warrants - Confidentiality of supporting material - The British Columbia Court of Appeal, per McEachern, C.J.B.C., stated that "judges should be exceedingly cautious about ordering the production of even a carefully edited tip sheet or report for which infor­mant privilege is claimed. Judges should recognize that any confidence they may have about their ability to edit out infor­mation that might disclose the identity of an informant is probably misplaced, and possibly dangerously so. The court cannot step into the shoes of the accused and decide, on the basis of his knowledge, that an informant will not be identified ... the accused may know that only some very small circle of persons, perhaps only one, may know an apparently innocuous fact that is mentioned in the document" - See paragraph 35.

Criminal Law - Topic 3105

Special powers - Issue of search warrants - Privileged or confidential documents - [See both Criminal Law - Topic 3099 ].

Cases Noticed:

R. v. Kelly (R.J.) (1995), 61 B.C.A.C. 119; 100 W.A.C. 119; 99 C.C.C.(3d) 367 (C.A.), refd to. [para. 24].

R. v. Hardy (D.A.) (1994), 45 B.C.A.C. 146; 72 W.A.C. 146 (C.A.), refd to. [para. 24].

R. v. Howe (R.Y.) (1994), 52 B.C.A.C. 271; 86 W.A.C. 271 (C.A.), refd to. [para. 24].

R. v. Chambers (1985), 9 O.A.C. 228; 20 C.C.C.(3d) 440 (C.A.), refd to. [para. 24].

R. v. Archer (1989), 94 A.R. 323; 47 C.C.C.(3d) 567 (C.A.), refd to. [para. 24].

R. v. MacFarlane (K.R.) (1992), 100 Nfld. & P.E.I.R. 302; 318 A.P.R. 302; 76 C.C.C.(3d) 54 (P.E.I.C.A.), refd to. [para. 24].

R. v. Garofoli, [1990] 2 S.C.R. 1421; 116 N.R. 241; 43 O.A.C. 1; 36 Q.A.C. 161; 60 C.C.C.(3d) 161; 80 C.R.(3d) 317; 50 C.R.R. 206, refd to. [para. 25].

R. v. Dersch (W.W.) et al., [1990] 2 S.C.R. 1505; 116 N.R. 340; 43 O.A.C. 256; [1991] 1 W.W.R. 231; 80 C.R.(3d) 299; 60 C.C.C.(3d) 132; 50 C.R.R. 272; 77 D.L.R.(4th) 473; 36 Q.A.C. 258, refd to. [para. 25].

R. v. Stinchcombe, [1991] 3 S.C.R. 326; 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161; 68 C.C.C.(3d) 1, refd to. [para. 25].

R. v. Grant (D.), [1993] 3 S.C.R. 223; 159 N.R. 161; 35 B.C.A.C. 1; 57 W.A.C. 1, refd to. [para. 33].

Authors and Works Noticed:

Radzinowicz, L., A History of English Criminal Law and its Administration from 1750 (1968), vol. 4, p. 164 [para. 20].

Counsel:

S.D. Frankel, Q.C. and N.M. Young, for the appellant;

M.D. Sanders, for the respondent;

R.C.C. Peck, Q.C., M. MacLeod and C. Boyle, for the intervenor, Greater Vancouver Crime Stoppers Association.

This appeal was heard on March 25, 1996, at Vancouver, British Columbia, before McEachern, C.J.B.C., Southin and Cumming, JJ.A., of the British Columbia Court of Appeal. On April 12, 1996, the judgment of the court was delivered and the fol­low­ing opinions were filed:

Southin, J.A. - see paragraphs 1 to 28;

McEachern, C.J.B.C. - see paragraphs 29 to 37;

Cumming, J.A. - see paragraph 38.