On November 8, 2017, a jury in Oshawa, Ontario, convicted Keenan Corner of second degree murder in the shooting death of high school buddy, and weed dealing partner, Shabir Niazi. But not without an unusual twist. The case went to the Supreme Court of Canada before the trial. Here’s the story.

On February 19, 2014, Niazi was felled by a hail of bullets in a residential garage in Ajax, Ontario, two of which struck the heart and the back of the head. Corner made two statements to the police saying that a group of bandits did it. The police didn’t believe a word and put Corner under surveillance. Police officers saw him stash the gun in a wooded area and make a call to Crime Stoppers from a pay phone claiming to have seen the men leaving the property in the direction of Lake Ontario. It was the anonymous tip to Crime Stoppers that triggered the trek to the Supreme Court. Was Corner’s call protected by informant privilege? (See: Jeff Mitchell. Keenan Corner guilty of murder in friend’s shooting death in Ajax. DurhamRegion.com. November 8, 2017)

The Crown brought a pretrial motion seeking to introduce evidence of the tip arguing that Corner made the call to divert police attention from himself. It sought to use the call as evidence relevant to credibility. Corner denied making the call and later testified at trial that he shot Niazi in self-defence. The motion judge ruled that informant privilege did not apply because its application, in the circumstances, would undermine the objectives of the privilege. Corner and Crime Stoppers appealed directly from the Ontario Superior Court of Justice under s. 40(1) of the Supreme Court Act, RSC 1985, c. S-26.

On September 22, 2017, the Supreme Court of Canada released its unanimous ruling reported as R v Durham Regional Crime Stoppers Inc., 2017 SCC 45. Writing for the court, Justice Michael Moldaver held that (1) informant privilege does not exist where a person has contacted Crime Stoppers with the intention of furthering criminal activity or interfering with the administration of justice and (2) the motion judge had implemented a reasonable procedure in considering the Crown’s application. Here’s the tip as described by Justice Moldaver, at para. 4:

“The caller reported that on the day of the shooting, he was on the back porch of a house and could see into the backyard of another house neighbouring on the crime scene. There, he observed four men, whom he proceeded to describe. He reported that the four men waited near the crime scene for five to ten minutes before getting into a car and driving to a lake. At the lake, the men got out of the car and began throwing things into the water.”

1. Scope of Informant Privilege

The appellants argued that everyone who calls Crime Stoppers is a confidential informant and entitled to anonymity under the privilege. They asserted that the privilege attaches “as soon as the phone rings”. In rejecting that submission, Justice Moldaver said this, at para. 17:

“The scope of informer privilege is limited by its underlying rationales. As Binnie J. noted in Barros, ‘it is important not to extend [the privilege’s] scope beyond what is necessary to achieve its purpose of protecting informers and encouraging individuals with knowledge of criminal activities to come forward to speak to the authorities’…In other words, informer privilege cannot be interpreted to apply where it would compromise the very objectives that justify its existence. As indicated, informer privilege is granted in the public interest, to assist the police in the investigation of crime and the apprehension of criminals – and thus to further the interests of justice and the maintenance of public order. Where someone acts with the intention of furthering criminal activity or interfering with the administration of justice – for example, by making a call to Crime Stoppers with the intention of misleading the police in a criminal investigation – shielding this person’s identity behind the near absolute protection of informer privilege would compromise, if not negate, the privilege’s objectives. Informer privilege therefore does not arise in these circumstances, even though the person may have been promised confidentiality by law enforcement in exchange for information.” (See: R v Barros, [2011] 3 SCR 368 per Binnie J., at para. 28)

The point is not novel. In R v Hiscock (1992), 72 CCC (3d) 303 (Que CA) Justice Louis LeBel considered whether the privilege applied to wiretap evidence in which the defendant, a police informant, discussed his drug business. The intercepted conversations were used to convict Hiscock of drug trafficking. The question arose whether the wiretap evidence was inadmissible because it was protected by informant privilege. Justice LeBel held, at p. 330, that Hiscock intended to further his own criminal activity and to shield the intercepts would undermine the privilege “since it was used for an end and interests which are contrary to those which justify it in Canadian public law.” Although informants often operate in morally grey zones where misconduct may be entitled to protection, it did not extent to Hiscock who acted in his own interests. (See also: Named Person v Vancouver Sun, [2007] 3 SCR 253 per LeBel J., at para. 111)

2. Procedure

In cases where the Crown alleges that the privilege does not apply to a Crime Stoppers tip because the caller acted with the intention of furthering a crime or interfering with the administration of justice, the onus is on the Crown to establish that the caller is excluded on a balance of probabilities.  In any proceeding where a party – the defendant, the Crown or a third party with standing – challenges the validity of a privilege claim, the court must conduct an in camera hearing. (See: R v Basi, [2009] 3 SCR 389 per Fish J., at paras. 38 and 55-8)

The important development in Durham is the in camera proceeding where the Crown raises the issue. A motion judge may require a preliminary showing by the Crown before determining whether the privilege exists. Justice Moldaver put it this way, at paras. 43-6:

“…[A]pplications of this nature can come with significant costs to the trial process and the probative value of the evidence may be marginal. In view of these concerns, it may make sense for the application judge to require a preliminary in camera showing by the Crown in support of its claim that the evidence is admissible, before proceeding to a determination of whether informer privilege exists…This may involve an ‘exclusion showing’, a ‘probity showing’, or both.

For an exclusion showing, the Crown would be required to outline the basis upon which it is alleging that informer privilege does not apply. This may include a submission by the Crown about the evidence it expects to adduce to establish the identity of the informer and the requisite intent of furthering criminal activity or interfering with the administration of justice. The judge may decide that a hearing is unwarranted if he or she finds that the challenge is based on evidence that is weak or speculative.

The probity showing requires the Crown to demonstrate that there is a realistic prospect that the probative value of the evidence will outweigh its prejudicial effect. If the judge is satisfied that there is no realistic prospect that the probative value of the proposed evidence outweighs its prejudicial effect – which includes any increased trial time and moral and reasoning prejudice – then the judge should exercise his or her discretion to dismiss the challenge to the privilege claim.”

Justice Moldaver went on, at para. 46, to suggest that exclusion and probity showings will likely have to be heard ex parte and the motion judge may consider providing redacted summaries to the defence or appointing an amicus curiae under the Basi regime.

3. Conclusion

Corner and Crime Stoppers argued that if the privilege does not apply “as soon as the phone rings” callers who are misinformed or distort details to protect themselves may be dissuaded from providing information to the police. This chilling effect would undermine public trust in the promise of anonymity. Justice Moldaver rejected the argument for two reasons. First, only callers who intend to further crime or interfere with the administration of justice are excluded. This is a high bar to meet. It requires a heightened mental element involving a high degree of moral blameworthiness. Second, informant privilege is not an absolute rule and is subject to the innocence at stake exception. “Callers cannot know whether their identities will be disclosed through the innocence at stake exception,” Justice Moldaver observed at para. 29, “yet this has not been shown to deter people from providing information to Crime Stoppers.”

In an article titled Crime Stoppers worried about future after court rules tipsters who try to mislead police aren’t guaranteed anonymity published in the National Post edition of November 8, 2017, Joseph Brean reported a press release where Canadian Crime Stoppers said “the promise of anonymity is not an impenetrable cloak of immunity for those who seek to abuse it…(and) those who intentionally try to misuse the system, submitting information they know to be false for reasons of their own, face a risk that their identity may be exposed.”

That is not bad policy.