R v. Brassington – A Conflict of Privileges

Overview

R v. Brassington is a recent Supreme Court of Canada decision. Four police officers were charged with crimes that alleged misconduct during the investigation of a notorious gang-related murder in Surrey, British Columbia.  Notably, the six murders occurred 11 years ago, and sparked an ongoing gang war.  The public is still unaware of any details of the allegations against the police officers.   

The murder investigation involved multiple police informers. As a result, the accused police officers possessed information that had the potential to reveal the identity of one or more confidential informers.  The police officers sought to share this privileged information with their counsel in preparation for their defence.  

Once charges were laid, both the Crown and superior officers at the RCMP told the officers that they could not discuss anything with their lawyers that would lead to the identity of an informer. While there is no possibility here of evaluating the quality or quantity of the information possessed by the officers as a result of their role in the murder investigation,[1] the officers understood that their Charter rights were compromised  if they were prohibited from freely discussing their case with counsel.

All accused have an absolute right to speak freely to their lawyers about their case under solicitor-client privilege. A restriction on this right touches on vital Charter-protected procedural rights, such as the right under s. 7 to make full answer and defence to charges, and s. 11(d) – the right to a fair trial.

Section 7 also includes the right to pursue the identity of informers lawfully. In R v. Barros a lawyer hired a private detective to identify an informer.  The Supreme Court held that defence lawyers are not bound to uphold the privilege. While the defence have no right to the identity of an informer by way of disclosure, they always have a right under s. 7 of the Charter to defend themselves.^[2]

The facts in Brassington produced a conflict between the right to unfettered communication between lawyer and client, on the one hand, and the near-absolute right of an informer to a hidden identity, on the other.  Both forms of privilege are vital. They are equally fundamental to the administration of justice in Canada. The central question became whether both privileges could co-exist, or whether one must prevail when tested by these uncommon facts.

There is no case law in Canada that directly addresses the unique facts of Brassington. Accordingly, the decision is characterized by less than nuanced applications of the law. Were the facts not so rare one would ordinarily expect further refining litigation to follow, but as it exists, the case seems unlikely to have a future as an oft-cited precedent. Abella J., writing for the court,  recognized this uniqueness when she states that that she would not endorse what happened in the case as a procedural template for informer privilege litigation.[3] 

The accused officers sought a declaration from the case management judge[4] that they would not be in breach of any law if they told their lawyers what they knew about the informers. Wedge J. declared in the officers’ favour. The officers could share the unknown information in their possession even though it might reveal the identity of the confidential informer. Wedge J. held that both informer privilege and solicitor-client privilege could harmoniously co-exist. (It is unknown whether the declaration included an instruction that would bind the defence to maintain the privilege of the informers.)

Once the declaration was pronounced, the Crown and the RCMP advanced an objection under s.37 of the Canada Evidence Act[5] to stop the information being disclosed. The case management judge was thereby required to determine whether the communication she had already declared to be lawful actually was a “disclosure order” or “disclosure” within the meaning of s.37 of in order to engage the Crown objection. Wedge J. found that she did in fact have jurisdiction to hear the objection and then ruled in accord with her declaration.

Two Jurisdictional Issues

Two related  jurisdictional issues controlled the litigation thereafter. What exactly does “disclosure” mean under s.37? Was the declaration “criminal” or “civil” in nature? Only then could a court consider whether the Crown could resort to s.37 to object to disclosures made between an accused and his counsel.

First Jurisdictional Issue: The Meaning of “Disclosure” in s. 37 of the CEA

Traditionally, Sections 37, 38 and 39 of the Canada Evidence Act are provisions sparingly invoked by the Crown to object to disclosure orders that the Crown believes will endanger an informer by revealing his or her identity.  The wording of s.37(1) is important. It reads:

A Minister of the Crown in right of Canada or other person interested may object to the disclosure of information before a court, person or body with jurisdiction to compel the production of information by certifying orally or in writing to the court, person or body that the information should not be disclosed on the grounds of a specified public interest.

Frankel J.A. in the Court of Appeal readily found that the purpose of s. 37 was for objecting to disclosure of privileged information that had been ordered disclosed by a federal minister or a public official, such as a judge. Frankel J.A. found s.37 had no application to prevent a person who already had the information in question from voluntarily disclosing that information outside of any relevant proceedings. Arguably, this is a how s.37 had always been employed in Canadian law. 

By contrast, in the Supreme Court,  Abella J.[6] held that that the “interconnected purposes” of s. 37 and 37.1[7] “… give the Crown the ability to object to all disclosures on public interest grounds…”[8]. The Supreme Court thus expanded the application of s.37  to a non-court setting for the first time.   

The word “disclosure” ordinarily refers to that which the Crown obtains from an investigative agency and then provides to the defence under Stinchcombe.[9]  In Brassington, “disclosure” in s.37 is taken to mean “disclosures”, as in information revealed from person to person outside of the context of a sitting court.  All of the litigation in s.37 litigation in the past had used or assumed that the word “disclosure” in s.37 meant “disclosure” in the Stinchcombe sense.    

The purposes of s. 37 and 37.1, Abella J. writes, was not meant to be restricted to those circumstances where the disclosure is compulsory and will occur in open court. “Disclosures” may be equally harmful to the public interest whether they are made in or outside of court.  Abella J. adds that s.37 was a provision that Parliament had carved as a special process for challenging such disclosures.[10] 

Frankel J.A. for the British Columbia Court of Appeal had reasoned that s.37 was not available to the Crown because the declaration was not a compelled production of disclosure, but was voluntary.  Abella J. found this distinction to be too technical.  A declaration, she said, which permits the disclosure of informer-privileged information is the same thing as an actual order of disclosure because the disclosure was inevitable. The collapse here between permission to do a thing, and the command to do it, may make sense in this specific context, but as a general proposition, it does not hold: There is much difference, for example, between permission to go to jail and an order to do so upon being sentenced.

Brassington introduces a new conduit of litigation – that of s.37 objections to potential disclosures occurring outside of court, such as from a client to his lawyer.  The statutory pre-requisite of the existence of a “court, person or body with jurisdiction to compel the production” is circumvented.   This reading of s.37 is perhaps best understood as a result of policy-driven reasoning, rather than purely logical application. Will the Crown use s.37 in order to prevent verbal disclosures outside of court in the future?  The answer is anyone’s guess, but it invites speculation. Also, it is unclear how the Crown could initiate a s.37 objection without a court being somehow already involved. Yet, one ought never doubt the inventiveness of lawyers in pressing forward novel applications of law.

The administration of criminal justice will no doubt continue to place reliance on the integrity of the defence.  Most defence counsel, I suspect, have no desire to find themselves in conflict between their duty of representing their clients and their duty to not disclose informer information. Most are likely to follow the example of counsel in R. v. Hirschboltz[11] who  removed himself as counsel of record when unable to relay the informer-privileged information he possessed to his client. 

Second Jurisdictional Issue: The Nature of the  Declaration

The second related component of the jurisdictional question is not as notable. This question was whether the declaration of Wedge J. was “civil” or “criminal” in nature?

A declaratory judgment is a formal statement by a court pronouncing upon the existence of a legal state of affairs. It is restricted to declaring a party’s rights and does not order any party to do anything.[12] Declaratory Orders are traditionally a civil remedy,[13] and are not common to the criminal law. 

If the declaration in Brassington was “civil” in nature, then s.37 of the Canada Evidence Act had no application because the Act only applies to criminal proceedings.[14]  Where  s.37 has no application, then there would be no way for the Crown object to the permissions in the declaration. 

The B.C. Court of Appeal held that the declaration was “civil” in nature. The court Ordered that the objections made by the Crown and RCMP under s.37 to the disclosure of information contemplated by the declaration should be dismissed.

In Brassington the Supreme Court applied Dagenais[15] to conclude that the nature of the declaration was determined by its purpose. Abella J. reasoned that the declaration sought related directly to the accused’s claim that declaratory relief was necessary to help them make full answer and defence in criminal proceedings. In addition, the declaration was made by a criminal case management judge in relation to rights in a criminal proceeding regarding the conduct of a defence. The essential character and purpose of the declaration was therefore “criminal”, and not “civil”.   

A Conflict of Privileges

The substantive issue in Brassington was the conflict between the privileges. The issue was whether an accused person may disclose informer-privileged information to counsel in the absence of a judicial determination regarding  “innocence at stake”. “Innocence at Stake” is short-hand for the singular and involved exception to informer privilege.  A two-stage test is outlined in R v. McClure.[16]

In Brassington, the Supreme Court finds that the police officers cannot tell their lawyers the informer-privileged information because the “innocence at stake” test had not been met. Prior to this “innocence at stake” had only been raised during trials. In private and privileged conversations there is no judge involved and no ability to obtain a ruling as to whether “innocence at stake” is applicable. It remains unclear how this is intended to be applied by accused persons in possession of privileged information.  

As mentioned, rare is the case where the identity of an informer is already known to the accused. In Brassington, the court applied the rationale from R v. Basi,[17] which is a Supreme Court case which excludes the defence from the circle of informer’s privilege.  Fish J. held, writing for the court, that defence counsel are not allowed to attend an in camera enquiry where they would hear evidence tending to identify an informer. This would impede frankness and interrupt the flow of information between lawyer and client impairing the relationship. In such a case, defence counsel would find themselves in a conflict between a duty to properly represent their clients and a duty not to disclose the information, and thus be under pressure to withdraw their representation. 

Basi is factually distinct from Brassington in this sense: While Basi addresses the issue of a lawyer from knowing information pertaining to an informant when the client does not, Brassington is the converse: it is the client who has the privileged information while the lawyer does not.  

The Supreme Court, however, found that both situations did not lead to the same conflicts. It was argued by the accused in Brassington that prohibiting the client from telling his lawyer all he knows results in the same undesirable tension as articulated in Basi.  (Indeed, the ideal is always for a client and her lawyer to know the same information.) Brassington, however finds that the police officers arguments were tantamount to an an invitation to the court to establish a new exception to informer privilege sourced in the right to solicitor-client privilege.   Regarding solicitor-client privilege the court states the “it does not … provide a licence to the client to communicate information that is otherwise protected from disclosure if it tends to identify an informer.  Although solicitor-client privilege provides a near-impenetrable shield for communications with counsel, it is not a sword that can be wielded to pierce informer privilege.”  What accused persons may do is advise their lawyer that they believe evidence from an informer would prove innocence, but not any of the details as to why they so believe.  This would enable the defence to pursue a McClure application, governed by a trial judge, at a later date.

In the contest, then, between the these two near-absolute cornerstone privileges, solicitor-client privilege takes the punch. The court explains that neither the right to solicitor-client privilege nor the right to make full answer and defence relieves an accused of his or her obligation to the informer privilege. 

Conclusion

The result in Brassington further entrenches the supremacy of informer privilege as absolute, absent proof that innocence is at stake. The privilege cannot be pierced even by persons not present in court. 

R v. Schertzer[18] is the only other case in Canada where accused police officers already possessed information about the identity of a confidential informant. The police officers in that case sought, from a court, yet further information regarding the the informant’s historical relationship to the police. It seems at least probable that the police officers in Schertzer had shared with their lawyers informer-privileged information, as how else would the lawyers know to pursue further evidence?  This leads one to speculate as to what might have happened in Brassington had the police officers never requested a declaration to clarify their rights in the first place, but merely forged ahead and told their lawyers the information. For one thing, the lawyers would have been able to assess whether the information was at all useful for  establishing innocence at stake.   The lawyers would not have had to have been cautious around their clients because the client knew the information already.  All the same, with a few more people now in the circle of privilege – persons who have no actual legal obligation to protect the informer -- unquestionably increases the risk of potential retribution against the informer. But by how much is a matter of how one estimates risk. The policy-driven decision in Brassington rightly favours safety first. The use of informers in the enforcement of criminal law brings risk of further harm, and its minimization ought to be a chief priority for the courts, even at the cost of reasonably applied criminal law.   

Defence counsel in these rare cases are not relieved of potentially awkward circumstances. Since informer privilege law does not prevent lawful investigation by the defence to learn whether the informer is in fact a fabricated source, an agent of the state, or a material witness of the crime (none of which are protected by informer privilege) it will remain ironic that the most reliable information regarding these matters is their own client, who cannot contribute to the pursuit of an informer’s identity.    

It is worth adding that the decision in Brassington can, in one sense, never be fully understood as the central facts required for more refined reasoning remain privileged. The police officers never argued innocence at stake nor do we know if the information relating to the informers is actually relevant to their defence. So the decision is, to that extent, abstract. Even thought such critical facts are missing, the Supreme Court has nonetheless decided well, and placed safety first. 

In Barros,  Binnie J. writes that it is because informer privilege can place a significant limitation on the defence that it must not be extended beyond that which is necessary to achieve its purpose.[19]   Brassington is, however, just such an extension, moving the frame of the limitations into the domain of solicitor-client privilege.

In summary the Supreme Court has:  Widened the remedial power available to the Crown under s.37 of the Canada Evidence Act for protecting the identity of an confidential informer even outside of courtroom;  reinforced the rule that the defence is not bound to protect the CI privilege except in cases of inadvertent disclosure; and, maintained the extremely high threshold for establishing “innocence at stake” in any circumstance as set out in McClure as the lone basis for intervention into the otherwise untouchable privilege afforded to all police informers.

About the author

John Stuart Dick is an Assistant Crown Attorney with the Ministry of the Attorney General, Ontario. The opinions or ideas expressed in this paper belong to the author and do not reflect the ideas and opinions of the Attorney General in any manner.

Any article or other information or content expressed or made available in this Section is that of the respective author and not of the OBA.