Vancouver Sun et al. v. Canada (Attorney General) et al., (2007) 247 B.C.A.C. 1 (SCC)

• Judge: McLachlin, C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ.
• Court: Supreme Court (Canada)
• Case Date: October 11, 2007
• Jurisdiction: Canada (Federal)
• Citations: (2007), 247 B.C.A.C. 1 (SCC);2007 SCC 43

Vancouver Sun v. Can. (A.G.) (2007), 247 B.C.A.C. 1 (SCC);

    409 W.A.C. 1

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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Temp. Cite: [2007] B.C.A.C. TBEd. OC.049

Named Person and Attorney General of Canada on behalf of the Requesting State (appellants) v. The Vancouver Sun, The Province, BCTV, Canadian Broadcasting Corporation, CKNW, CityTv and CTV, a Division of Bell Globemedia Inc. (respondents) and Attorney General of Ontario and Law Society of British Columbia (intervenors)

(30963; 2007 SCC 43; 2007 CSC 43)

Indexed As: Vancouver Sun et al. v. Canada (Attorney General) et al.

Supreme Court of Canada

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

October 11, 2007.

Summary:

A named person (NP) subject to an extradition proceeding applied for an in camera hearing, wherein he disclosed that he was a confidential police informer. NP and the Attorney General wanted all proceedings to remain in camera. The extradition judge, in a judgment reported 2006 BCSC 1805, appointed amicus curiae for advice and suggestions. Amicus curiae, after being given access to all exhibits and documents before the court, made recommendations to the judge, including that notice be given to certain media counsel. Notice was given to the suggested media counsel, subject to undertakings respecting confidentiality and non-disclosure. Another in camera hearing was ordered respecting how the confidential informer privilege, which the extradition judge found to be discretionary rather than absolute, could be balanced against the open court principle. Information was disclosed to the media counsel to permit them to prepare arguments for the upcoming in camera hearing. In a subsequent judgment, reported at 2006 BCSC 1805, the extradition judge ruled that media counsel, upon filing undertakings respecting confidentiality, were entitled to review the documents that were considered by the amicus curiae. NP and the Attorney General appealed.

The Supreme Court of Canada, LeBel, J., dissenting in part, allowed the appeal and set aside the order. Confidential informer privilege, subject to the innocence at stake exception, was absolute. Once the extradition judge accepted that NP was a confidential police informant, there was no discretion. The privilege was absolute. Amicus curiae should not have been appointed and the media should not have been given access to the information considered by the amicus curiae. If a judge exercised his discretion to give notice to the media, then notice should be given to all media, not limited to a selected few media counsel. The court set out the procedure to be followed when the court was faced with a confidential police informer claim.

Courts - Topic 4806

Common law - General - Hearings - Open court - The Supreme Court of Canada discussed the "open court" principle, stating that "the 'open court principle' is a 'hallmark of a democratic society'. ... Open courts have several distinct benefits. Public access to the courts allows anyone who cares to know the opportunity to see 'that justice is administered in a non-arbitrary manner, according to the rule of law' ... An open court is more likely to be an independent and impartial court. Justice seen to be done is in that way justice more likely to be done. The openness of our courts is a 'principal component' of their legitimacy ... the open court principle ... is clearly a broad principle of general application to all judicial proceedings." - See paragraphs 31 to 34.

Courts - Topic 4806

Common law - General - Hearings - Open court - [See third and fourth Evidence - Topic 4150 ].

Evidence - Topic 4150

Witnesses - Privilege - Privileged topics - Identity of police informants - The Supreme Court of Canada held that the confidential police informer privilege rule was absolute - There was no discretion not to protect an informant's identity - The court stated that "the rationale for the privilege's existence is not something that allows for weighing on a case-by-case basis the maintenance or scope of the privilege depending upon what risks the informer might face. Informer privilege is a class privilege that always applies when it has been established that a confidential informer is present. Once it has been established that the privilege exists, the court is bound to apply the rule. It is the non-discretionary nature of the informer privilege rule which explains that the rule is referred to as 'absolute'" - An informer had no right to unilaterally "waive" the privilege - See paragraphs 16 to 25.

Evidence - Topic 4150

Witnesses - Privilege - Privileged topics - Identity of police informants - The Supreme Court of Canada stated that "the [confidential informer privilege] rule is extremely broad in its application. The rule applies to the identity of every informer: it applies when the informer is not present, where the informer is present, and even where the informer himself or herself is a witness. It applies to both documentary evidence and oral testimony ... It applies in criminal and civil trials. The duty imposed to keep an informer's identity confidential applies to the police, to the Crown, to attorneys and to judges ... The rule's protection is also broad in its coverage. Any information which might tend to identify an informer is protected by the privilege. Thus the protection is not limited simply to the informer's name, but extends to any information that might lead to identification. The informer privilege rule admits but one exception: it can be abridged if necessary to establish innocence in a criminal trial (there are no exceptions to the rule in civil proceedings). According to the innocence at stake 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' ... It stands to be emphasized that the exception will apply only if there is an evidentiary basis for the conclusion; mere speculation will not suffice ... The exception applies only where disclosure of the informer's identity is the only way that the accused can establish innocence. ... innocence at stake is the only exception to the informer privilege rule. The rule does not allow an exception for the right to make full answer and defence. Nor does the rule allow an exception for disclosure under R. v. Stinchcombe ... Indeed, the Court's decision in Leipert suggests ... that an absolute informer privilege rule, subject only to the innocence at stake exception, is consistent with the Charter's provisions dealing with trial rights ... All other purported exceptions to the rule are either applications of the innocence at stake exception or else examples of situations in which the privilege does not actually apply. ... Thus, as I noted, the only time that the privilege, once found, can be breached, is in the case of an accused raising the innocence at stake exception. All other so-called exceptions are simply applications of this one true exception ... In conclusion, the general rationale for the informer privilege rule requires a privilege which is extremely broad and powerful. Once a trial judge is satisfied that the privilege exists, a complete and total bar on any disclosure of the informer's identity applies. Outside the innocence at stake exception, the rule's protection is absolute. No case-by-case weighing of the justification for the privilege is permitted. All information which might tend to identify the informer is protected by the privilege, and neither the Crown nor the court has any discretion to disclose this information in any proceeding, at any time." - See paragraphs 16 to 29.

Evidence - Topic 4150

Witnesses - Privilege - Privileged topics - Identity of police informants - The Supreme Court of Canada stated that the confidential informer privilege was limited to non-disclosure of any information which would in fact tend to reveal an informer's identity - All other information respecting the proceeding remained information which should be published under the open court principle - See paragraph 40.

Evidence - Topic 4150

Witnesses - Privilege - Privileged topics - Identity of police informants - The Supreme Court of Canada set out the procedure to be followed when faced with a confidential police informant privilege claim - The alleged informer should request an in camera proceeding, with only the informer and the Attorney General present, to determine if there was evidence to support the privilege claim - No third party should be present and even the claim of privilege should not be disclosed - It was permissible to appoint an amicus curiae for the limited purpose of determining whether the evidence supported the confidential informant claim - If the privilege claim was established, any information that might tend to identify the informant's identity could not be disclosed - The open court principle demanded that all non-identifying information be disclosed - The judge had a discretion to give notice of the existence of a proceeding to the public, by way of hard copy at the courthouse and some electronic form - Notice must be given to all, not just a selected group of media - The next step was to hear submissions to determine whether in camera proceedings were required - At this point, the media had standing to present arguments on how informer privilege could be respected with minimal effect on the open court principle - The judge must accommodate the open court principle to as great an extent as possible without risking a breach of the informer privilege - See paragraphs 45 to 61.

Evidence - Topic 4150

Witnesses - Privilege - Privileged topics - Identity of police informants - A named person (NP) subject to an extradition proceeding applied for an in camera hearing, wherein he disclosed that he was a confidential police informer - NP and the Attorney General wanted all proceedings to remain in camera - The extradition judge appointed amicus curiae for advice - Amicus curiae, after being given access to all exhibits and documents before the court, made recommendations to the judge, including that notice be given to selected media counsel - Notice was given to the suggested media counsel, subject to undertakings respecting confidentiality and non-disclosure - Another in camera hearing was ordered respecting how the confidential informer privilege, which the extradition judge found to be discretionary rather than absolute, could be balanced against the open court principle - Information was disclosed to the media counsel to permit them to prepare arguments for the upcoming in camera hearing - The extradition judge subsequently ruled that media counsel, upon filing undertakings respecting confidentiality, were entitled to review the documents disclosed to the amicus curiae - NP and the Attorney General appealed - The Supreme Court of Canada allowed the appeal and set aside the order - Confidential informer privilege, subject to the innocence at stake exception, was absolute - Once the extradition judge accepted that NP was a confidential police informant, there was no discretion - Amicus curiae should not have been appointed and the media should not have been given access to the documents considered by the amicus curiae - If a judge exercised his discretion to give notice to the media, then notice should not have been limited to a selected few media counsel.

Practice - Topic 687

Parties - Adding or substituting parties - Intervenors - Amicus curiae - [See fourth Evidence - Topic 4150 ].

Cases Noticed:

R. v. Hunter (1987), 19 O.A.C. 131; 57 C.R.(3d) 1 (C.A.), refd to. [para. 17].

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. 17].

Bisaillon v. Keable et al., [1983] 2 S.C.R. 60; 51 N.R. 81, refd to. [para. 20].

Powell v. Chief Constable of North Wales Constabulary, [1999] E.W.J. No. 6844 (C.A.), refd to. [para. 25].

Savage v. Chief Constable of Hampshire, [1997] 1 W.L.R. 1061 (C.A.), refd to. [para. 25].

R. v. Brown (J.D.), [2002] 2 S.C.R. 185; 285 N.R. 201; 157 O.A.C. 1; 2002 SCC 32, refd to. [para. 27].

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. 28].

R. v. Scott, [1990] 3 S.C.R. 979; 116 N.R. 361; 43 O.A.C. 277, refd to. [para. 29].

R. v. Davies (1982), 1 C.C.C.(3d) 299 (Ont. C.A.), refd to. [para. 29].

Application Under Section 83.28 of the Criminal Code, Re, [2004] 2 S.C.R. 332; 322 N.R. 161; 199 B.C.A.C. 1; 326 W.A.C. 1; 2004 SCC 43, refd to. [para. 31].

Vancouver Sun, Re - see Application Under Section 83.28 of the Criminal Code, Re.

Scott v. Scott, [1913] A.C. 417 (H.L.), refd to. [para. 31].

Ambard v. Attorney General for Trinidad and Tobago, [1936] A.C. 322 (P.C.), refd to. [para. 31].

Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480; 203 N.R. 169; 182 N.B.R.(2d) 81; 463 A.P.R. 81, refd to. [para. 32].

Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; 102 N.R. 321; 103 A.R. 321, refd to. [para. 33].

Nixon v. Warner Communications Inc. (1978), 435 U.S. 589, refd to. [para. 33].

Ruby v. Royal Canadian Mounted Police et al., [2002] 4 S.C.R. 3; 295 N.R. 353; 2002 SCC 75, refd to. [para. 33].

Ruby v. Canada (Solicitor General) - see Ruby v. Royal Canadian Mounted Police et al.

Canadian Broadcasting Corp. v. Dagenais et al., [1994] 3 S.C.R. 835; 175 N.R. 1; 76 O.A.C. 81, refd to. [para. 34].

R. v. Mentuck (C.G.), [2001] 3 S.C.R. 442; 277 N.R. 160; 163 Man.R.(2d) 1; 269 W.A.C. 1; 2001 SCC 76, refd to. [para. 34].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, refd to. [para. 34].

R. v. Dell (C.M.) (2005), 195 O.A.C. 355; 194 C.C.C.(3d) 321 (C.A.), refd to. [para. 60].

R. v. Toronto Star Newspapers Ltd. et al., [2005] 2 S.C.R. 188; 335 N.R. 201; 200 O.A.C. 348; 2005 SCC 81, refd to. [para. 81].

Sierra Club of Canada v. Canada (Minister of Finance) et al., [2002] 2 S.C.R. 522; 287 N.R. 203; 2002 SCC 41, refd to. [para. 81].

R. v. O.N.E., [2001] 3 S.C.R. 478; 279 N.R. 187; 160 B.C.A.C. 161; 261 W.A.C. 161; 2002 SCC 77, refd to. [para. 81].

Canadian Newspapers Co. v. Canada, [1988] 2 S.C.R. 122; 87 N.R. 163; 32 O.A.C. 259, refd to. [para. 81].

R. v. Lawrence, [2001] O.J. No. 5776 (C.J.), refd to. [para. 100].

R. v. Hiscock (G.); R. v. Sauvé (P.) (1992), 46 Q.A.C. 263; 72 C.C.C.(3d) 303 (C.A.), refd to. [para. 110].

Babcock et al. v. Canada (Attorney General) et al., [2002] 3 S.C.R. 3; 289 N.R. 341; 168 B.C.A.C. 50; 275 W.A.C. 50; 2002 SCC 57, refd to. [para. 112].

Rovario v. United States (1957), 353 U.S. 53, refd to. [para. 114].

Robinson v. South Australia, [1931] A.C. 704 (P.C.), refd to. [para. 116].

Sankey v. Whitlam (1978), 21 A.L.R. 505 (Aust. H.C.), refd to. [para. 116].

R. v. Salituro, [1991] 3 S.C.R. 654; 131 N.R. 161; 50 O.A.C. 125, refd to. [para. 117].

Pepsi-Cola Canada Beverages (West) Ltd. v. Retail, Wholesale and Department Store Union, Local 558 et al., [2002] 1 S.C.R. 156; 280 N.R. 333; 217 Sask.R. 22; 265 W.A.C. 22; 2002 SCC 8, refd to. [para. 117].

Elsom v. Elsom, [1989] 1 S.C.R. 1367; 96 N.R. 165, refd to. [para. 123].

R. v. Regan (G.A.), [2002] 1 S.C.R. 297; 282 N.R. 1; 201 N.S.R.(2d) 63; 629 A.P.R. 63; 2002 SCC 12, refd to. [para. 123].

Canada (Minister of Citizenship and Immigration) v. Tobiass et al., [1997] 3 S.C.R. 391; 218 N.R. 81, refd to. [para. 123].

R. v. Carosella (N.), [1997] 1 S.C.R. 80; 207 N.R. 321; 98 O.A.C. 81, refd to. [para. 123].

Reza v. Minister of Employment and Immigration, [1994] 2 S.C.R. 394; 167 N.R. 282; 72 O.A.C. 348, refd to. [para. 123].

Friends of the Oldman River Society v. Canada (Minister of Transport and Minister of Fisheries and Oceans), [1992] 1 S.C.R. 3; 132 N.R. 321, refd to. [para. 123].

3464920 Canada Inc. v. Strother et al. (2007), 363 N.R. 123; 241 B.C.A.C. 108; 399 W.A.C. 108; 2007 SCC 24, refd to. [para. 138].

R. v. Henry (1990), 61 C.C.C.(3d) 455 (Que. C.A.), refd to. [para. 138].

Spector v. Ageda, [1971] 3 All E.R. 417 (Ch. D.), refd to. [para. 138].

R. v. Guess (G.) (2000), 143 B.C.A.C. 51; 235 W.A.C. 51; 148 C.C.C.(3d) 321 (C.A.), refd to. [para. 139].

Orfus Realty v. D.G. Jewellery of Canada Ltd. (1995), 83 O.A.C. 35; 24 O.R.(3d) 379 (C.A.), refd to. [para. 141].

Reference Re Secession of Quebec, [1998] 2 S.C.R. 217; 228 N.R. 203, refd to. [para. 155].

Cooper v. Canadian Human Rights Commission, [1996] 3 S.C.R. 854; 204 N.R. 1, refd to. [para. 155].

Miron and Valliere v. Trudel et al., [1995] 2 S.C.R. 418; 181 N.R. 253; 81 O.A.C. 253, refd to. [para. 155].

Canadian Pacific Airlines Ltd. et al. v. Canadian Air Line Pilots Association et al., [1993] 3 S.C.R. 724; 160 N.R. 321, refd to. [para. 155].

Authors and Works Noticed:

Bentham, Jeremy, Treatise on Judicial Evidence (1825), p. 69 [para. 84].

Blackstone, William, Commentaries on the Laws of England (1768), vol. 3, c. 23, p. 373 [para. 82].

Burton, John Hill, Benthamiana: Or, Select Extracts from the Works of Jeremy Bentham, With an Outline of His Opinions on the Principal Subjects Discussed in His Works (1843), p. 115 [paras. 31, 83].

Canada, Law Reform Commission, Public and Media Access to the Criminal Process, Working Paper No. 56 (1987), p. 45 [para. 95].

Cooper, T.G., Crown Privilege (1990), pp. 189 to 191 [para. 102].

Eagles, Ian, Evidentiary Protection for Informers - Policy or Privilege? (1982), 6 Crim. L.J. 175, p. 188 [para. 116].

Hubbard, Robert W., Magotiaux, Susan, and Duncan, Suzanne M., The Law of Privilege in Canada (2006 Looseleaf) (2007 Update, Release 1), pp. 2-2 [para. 26]; 2-7 [para. 23]; 2-28 [para. 29].

MacKenzie, Gavin, Lawyers and Ethics: Professional Responsibility and Discipline (2005) (2006 Looseleaf Update, Release 1), p. 17-7 [para. 141].

Paciocco, David M., and Stuesser, Lee, The Law of Evidence (4th Ed. 2005), p. 254 [para. 29].

Sopinka, John, Lederman, Sidney N., and Bryant, Alan W., The Law of Evidence in Canada (2nd Ed. 1999), pp. 882 [para. 26]; 883 [paras. 25, 26, 107]; 884 [para. 27].

Wigmore, John Henry, Evidence in Trials at Common Law (Chadbourn Rev. 1976), vol. 6, pp. 435, 436 [para. 82].

Wigmore, John Henry, Evidence in Trials at Common Law (McNaughton Rev. 1961), vol. 8, § 2374 [para. 116].

Counsel:

Ian Donaldson, Q.C., for the appellant Named Person;

Bernard Laprade and Cheryl D. Mitchell, for the appellant, Attorney General of Canada;

Robert S. Anderson and Ludmila B. Herbst, for the respondents, Vancouver Sun, The Province and BCTV;

Daniel W. Burnett and Heather E. Maconachie, for the respondent, Canadian Broadcasting Corp.;

Michael A. Skene and Angus M. Gunn, Jr., for the respondent, CTV, a Division of Bell Globemedia Inc.;

No one appeared for the respondents, CKNW and CityTv;

Christopher Webb, for the intervenor, Attorney General of Ontario;

Leonard T. Doust, Q.C., and Michael A. Feder, for the intervenor, Law Society of British Columbia.

Solicitors of Record:

Donaldson Jetté, Vancouver, B.C., for the appellant, Named Person;

Department of Justice, Vancouver, B.C., for the appellant, Attorney General of Canada;

Ferris, Vaughan, Wills & Murphy, Vancouver, B.C., for the respondents, Vancouver Sun, The Province and BCTV;

Owen Bird, Vancouver, B.C., for the respondent, Canadian Broadcasting Corp.;

Borden Ladner Gervais, Vancouver, B.C., for the respondent, CTV, a Division of Bell Globemedia Inc.;

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

McCarthy Tétrault, Vancouver, B.C., for the intervenor, Law Society of British Columbia.

This appeal was heard on April 24, 2007, before McLachlin, C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ., of the Supreme Court of Canada.

On October 11, 2007, the judgment of the Court was delivered in both official languages and the following opinions were filed:

Bastarache, J. (McLachlin, C.J.C., Binnie, Deschamps, Fish, Abella, Charron and Rothstein, JJ., concurring) - see paragraphs 1 to 66;

LeBel, J., dissenting in part - see paragraphs 67 to 156.