SUPREME COURT OF Nova Scotia
Citation: R. v. Sandeson, 2017 NSSC 146
Date: 2017 05 25
Docket: CRH No. 449840
Registry: Halifax
Between:
Her Majesty the Queen
v.
William Michael Sandeson
DECISION – VOIR DIRE 7B
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Judge: |
The Honourable Justice Joshua Arnold |
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Heard: |
May 9, 10, 16, and 17, in Halifax, Nova Scotia |
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Counsel: |
Susan MacKay and Kim McOnie, for the Crown Eugene Tan and Brad Sarson, for the Defendant Peter Planetta, for Bruce Webb the Applicant |
By the Court:
[1] This decision addresses whether Bruce Webb was or is a confidential informant for the police such that his identity and involvement with the police in obtaining statements from Justin Blades and Pookiel McCabe must be kept confidential.
Facts
[2] Bruce Webb was an employee of Martin & Associates Investigations Inc., a private investigation firm staffed by retired police officers. Webb was a thirty-five year member of the R.C.M.P. and retired in 2012 with the rank of Staff Sergeant. He worked for Martin & Associates Investigations Inc. as a private investigator.
[3] William Sandeson is charged with the first degree murder of Taylor Samson. The Crown alleges that Samson was the victim of foul play during a drug transaction that took place in Sandeson’s apartment on August 15, 2015.
[4] Martin & Associates Investigations Inc. was hired to assist the defence team working for Sandeson. They were tasked with interviewing witnesses in preparation for trial. Some of the witnesses they were to interview had previously given statements to the police.
[5] Justin Blades and Pookiel McCabe had been in McCabe’s apartment directly across the hall from the apartment of Sandeson when an incident involving Sandeson and Samson occurred on August 15, 2015. Both Blades and McCabe gave statements to the police in August claiming that they did not see or know anything about the incident. A surveillance video seized from Sandeson’s apartment depicts both Blades and McCabe having contact with Sandeson and looking into Sandeson’s apartment during critical times.
[6] During a lengthy mistrial voir dire held in relation to Webb’s involvement in this case it became apparent that the police had no independent plans to conduct follow up interviews with Blades or McCabe.
[7] Mr. Webb lives in the same neighborhood as Staff Sergeant Richard Lane, a senior member of the Halifax Regional Police. They had known each other professionally for decades, but were not friends and did not socialize. Staff Sgt. Lane testified that sometime in the summer of 2015, Webb had shown up at the door to his home unannounced. He told Lane that he was working for Martin Investigations, that Martin Investigations was assisting Sandeson in his defence, that he was convinced of Sandeson’s guilt and he was concerned that the police were not doing a good job with the investigation. Lane paid no attention to this visit.
[8] On October 18, 2015, Webb met with Blades to re-interview him. He located Blades with the assistance of Sandeson’s brother, Adam Sandeson. Blades told Webb that he thought Sandeson was connected to the Hells Angels and that he had been living in fear and partial isolation to avoid reprisals. Webb assured Blades that it was highly unlikely that Sandeson had any direct connection to the Hells Angels and that he would be safe in telling the truth. Blades said he felt relieved and provided Webb with a statement. Blades told Webb that his August 2015 statement to the police contained false information insofar as him saying he had not witnessed anything of significance. Very few details of Blade’s statement to Webb were provided to the court other than that Blades indicated that his initial statement to the police was false and that, very generally, on August 15, 2015, he had looked into Sandeson’s apartment at the critical times and had seen a male, who he believed to be Samson, slumped over in a chair with blood pouring out of his head. Webb says that he told Blades he should provide a new statement to the police. Blades said that he would if Webb assisted him. Webb told Blades that he would assist him.
[9] During Webb’s 35 year career with the R.C.M.P. he had dealt with criminal informants.
[10] On the drive home from Blade’s interview Webb saw Lane walking his puppy in their neighbourhood. Webb said he felt very emotional about the interview with Blades. He said he was also concerned that he might be criminally liable for obstruction of justice if he did not provide the police with Blades’s new information. He had already promised Blades that he would assist him in speaking to the police. He therefore pulled over to speak to Lane and told him what had just happened with Blades.
[11] Webb says that he started his discussion with Lane with the caveat that he did not want his name mentioned as having assisted the police. Lane says that the issue of confidentiality was raised by Webb. Lane also says that, in his opinion, this was not the type of conversation appropriately held on the side of the road, in shorts, while walking his puppy and he therefore told Webb that he would have a detective involved in the file contact him the following day. Lane said that he likely told Webb that his name could probably be kept out of it, but provided no firm assurances or guarantees.
[12] The next day, Lane advised Sergeant Derek Boyd, a member of the investigative triangle looking after the Samson homicide investigation, and Constable Jody Allison, an R.C.M.P. member who had worked on the Samson file and who knew Webb, of his conversation with Webb. He told them that Webb’s involvement was to remain confidential and they were to avoid water cooler discussions about the situation.
[13] Allison then spoke to Webb who reiterated his request for confidentiality and told him about his interview with Blades. Webb then agreed to meet the police at Blades’s home to assist in easing Blades’s mind about providing a statement.
[14] Boyd and Allison met Webb at Blades’s home on October 20, 2016. Webb was already there when the police arrived. Webb met with Boyd, Allison and Blades together and assured Blades that he was doing the right thing and that Boyd and Allison were trustworthy. Blades then agreed to provide the police with a new statement.
[15] Boyd and Allison then took Blades to Halifax Regional Police Headquarters and obtained a KGB statement from him. Webb had no further contact with Blades following the initial meeting that day between himself, Blades, Boyd and Allison.
[16] In his KGB statement, Blades stated in part:
• He was scared Sandeson was connected to the Hells Angels and as a result he might be in danger if he spoke to the police;
• As a result he had not provided the police with an accurate statement when they spoke to him in August;
• He was waiting to speak to someone to tell them what he really saw and was relieved when someone finally came to speak to him;
• He, McCabe and Sandeson had been socializing in McCabe’s apartment;
• Sandeson left;
• Shortly after Sandeson left they heard a gunshot;
• They listened at their door and could only hear the sound of furniture being dragged across the floor;
• Within a minute or so of hearing the gunshot Sandeson knocked at their door;
• They opened the door, saw Sandeson who looked at them and immediately stepped back across the hall to his apartment leaving his door open;
• He and McCabe followed Sandeson to the threshold of his apartment and Blades saw a white male seated in a chair at the kitchen table slumped over with blood pouring out of the back of his head;
• They saw blood, money and drugs around the slumped over man;
• Sandeson was running around his apartment trying to clean up;
• They went back to McCabe’s apartment briefly;
• Blades then went back across the hall and again looked into Sandeson’s apartment;
• This time he saw bloody streak marks leading from where the bleeding man had been slumped over in the chair. These streak marks lead out of sight toward the bathroom;
• Blood and money were in and around the kitchen area;
• Sandeson running around the apartment trying to clean up;
• Sandeson asked Blades to bring his car around;
• Blades declined;
• Blades and McCabe left the building;
• Blades returned to Sandeson’s apartment the following day and noted that it smelled strongly of cleaning fluids and had been cleaned up. Sandeson acted as though everything was normal.
[17] Blades stated the following in his KGB statement about "Bruce", i.e. Webb:
Q. Right. Now does… has any of his family members tried to get a hold of you?
A. No, just Adam. Adam messaged me on Facebook. He’s, like, Bruce… like, a fellow named Bruce is… wants to talk to you to help the family out, and I was thinking, like, help Will’s family out? And there’s, like… I was thinking, like, there’s no help for him.
Q. Right, okay.
A. So, like… and then I was thinking, like, maybe this is an opportunity for me to fucking figure out what’s going on, like, can I tell people what happened, like…
Q. Right.
A. … without getting in trouble?
Q. Yeah.
A. Like…
Q. Yeah.
A. … killed, obviously…
Q. Exactly, yeah.
A. … or whatever.
…
A. I just don’t want my name… I just don’t…
Q. Yeah.
A. … want… I… my life’s been fucked up enough, like…
Q. Right, you…
A. …internally, like, I…
Q. Obviously, if you could… if you didn’t… if everything worked out and you didn’t have to go to court, that would be the best thing…
A. Option.
Q. Best option ever.
A. They need… obviously, I don’t know what kind of other evidence you guys have, but…
Q. Uh-huh.
A. … by the sounds of it, like, he’s pretty guilty.
Q. Yeah.
A. And, like, he deserves to take responsibility for his actions, like, obviously, and that’s… a hundred percent agree with you there, that’s fucked, but, like, if it comes down to it, like, if I have to, like…
…
Q. So… so Pookiel, he saw everything that you pretty well saw, did he?
A. Yeah, he was with me there.
Q. He was right beside you.
A. Yeah.
Q. He saw everything, and when you guys were… obviously, you talked about it later on. Did… did he recall anything more that… you know, do you remember if he’s… had more detail or anything like that, or did he see the same type…
A. Yeah.
Q. … (inaudible) like, just…
A. He was just, like, more suppressed. I think he just wanted to, like… like, obviously, like, he’s got… like, didn’t really want to talk about it, like, he was just, like…
Q. Okay.
A. Like, he was with all of us all night, like, he…
Q. Oh yes, yeah, yeah, no.
A. Yeah, like, he’s…
Q. We know… we’re…
A. Yeah, okay.
Q. We’re confident in that.
A. Yeah.
Q. We’re… I guess what we’re just trying to figure out, like, you know, we’ll… we’ll ha… we still have to go and speak with him again.
A. Yeah, for sure.
Q. And does he… does he know that any… does he know that you… he obviously doesn’t know that you were coming here.
A. No, no one knows I’m here…
Q. Okay, and I mean…
A. … today.
Q. … the… he… he probably won’t know that… unless you tell him, I guess, that you know…
A. I almost wanted to go… and I don’t know how, like, any of the justice system works here, but I almost wanted to go into the jail and be, like, I’m tired, man, like, what’s going on, like, you need to come clean, like, tell me if I’m… am I being pursued, like.
Q. Yeah.
A. And then, obviously, like, I feel like that was a recording place, like, they’d probably be, like…
Q. Yeah.
A. And then, obviously, because I didn’t tell you guys in a place I could get in trouble, so I, like…
Q. Right.
A. … assisted.
Q. Yeah, yeah, that was something you were thinking of doing, you mean?
A. Yeah, like…
Q. Okay.
A. … stuff like that played in my mind all the time and I was just, like…
Q. Okay.
A. As time went on, I felt better and better about not being, like… come after, so I was…
Q. Right.
A. …like …
Q. Yeah.
A. I was, like, man, like, I need to, like, get this… I need to tell someone, like, fuck.
Q. Yeah, no, you… Justin, you did the right thing.
A. And then when Bruce, like, came to me, and then I was, like, finally, someone came to me, like.
Q. Yeah.
A. Had a hard time reaching out because I didn’t trust anyone.
Q. Right.
A. And then I… I googled Bruce online and I knew… I seen what he was about for years and years and what he did.
Q. Okay.
A. And I knew he wasn’t, like… yeah, I felt comfortable talking to him.
Q. Okay.
A. I let him in my house and I felt comfortable in my own house.
Q. Okay.
A. Yeah.
Q. All right, well, listen, I’m just going to go out and make sure that I didn’t forget anything else.
A. Yeah.
Q. And then we’re going to end it and… Do you have any questions for me or…
A. Just, like, should I call Kamal? I don’t have his number, but…
Q. You can… like, I mean, you… you… you can if you want.
A. Yeah, like, I should probably, like, let him know, like, I’ve come clean, like.
Q. But, I mean, that’s up to yourself. You don’t have to do any of that stuff. I mean…
A. I just… I don’t know, like, I don’t want him… I don’t know, I guess it doesn’t really matter, but I don’t know.
Q. I mean, we’ll… we’ll… we obviously will have to follow up with him.
A. Obviously, yeah.
Q. Wherever he is, we’ll… we can track him down, obviously, and we’ll just…
A. Yeah.
Q. … you know, say, you know, we know that you know-type thing.
A. Yeah.
Q. So, I mean, it’s up to you.
A. I just don’t want him… you guys to scare the fuck out of him.
Q. No.
A. That’s all I wanted to tell him, that…
Q. Yeah.
A. … I came clean and totally don’t worry.
Q. Yeah.
A. Like, it’s okay, man, like.
Q. Yeah.
A. I don’t want him to feel any way more than I know that we felt in the past year or whatever. It’s…
Q. I mean, it’s got to have been tough on you guys, so…
A. Oh my God, like, oh…
Q. All right, I’m just going to make sure everything is good, okay, and I think we’ll be done.
A. Yeah.
(Officer leaves room – 13:58:23 hrs)
(Officer returns – 13:58:27 hrs)
Q. All right, Justin, I think we’re good here. I’ll just get the time. It is… of course, I shut the phone off, shut them both off. Anyway…
A. Good for you.
Q. You got yours, have you?
A. Yeah, it’s not even a phone, it’s a wi-fi phone.
Q. Oh, perfect.
A. Yeah, I don’t have a phone. 1:58.
Q. 1:58, we’re all done.
A. That’s it.
Q. Okay? All right, Justin, we can get you…
A. But I do have an… an app. I think you guys have that number, maybe. I gave it to Bruce.
Q. Yeah.
A. … (inaudible)
Q. No, you know what, I… I might…
A. Yeah, yeah.
Q. Do you mind if I get it from you.
A. No, it’s a… it’s… it comes up as a British Columbia number.
Q. Okay.
A. Obviously, because I… I want it to look like I’m not around here.
Q. Yeah, no, that’s fine, maybe I’ll just…
[18] After assisting the police in obtaining a statement from Blades on October 20, 2016, Webb then contacted McCabe in Toronto through Facebook and then over the telephone. He told McCabe that he had spoken with Blades, what Blades had told him, and that Blades had recently cooperated with the police. McCabe then provided Webb with a new statement. Unbeknownst to McCabe, Webb then provided McCabe’s contact information to the police and advised them that they should also re-interview him.
[19] Within days of Webb’s suggestion, the police arrived unannounced at McCabe’s home and took a KGB statement from him which confirms much of Blades’s KGB statement.
[20] The KGB statements of Blades and McCabe were taken by the police in October 2016. Those statements were immediately disclosed to Sandeson in their entirety with no vetting of the references to Bruce. However, the specific fact of Webb’s involvement in obtaining those statements was not disclosed until part way through the trial when McCabe had already completed most of his testimony.
[21] Sandeson has made a motion for a mistrial based on the mid-trial disclosure of the involvement of Webb in assisting the police obtain new statements from Blades and McCabe.
[22] Webb was called by Sandeson to testify on the mistrial voir dire. Neither Crown nor defence alerted the Court to the fact that Webb still believed he had confidential informer status prior to his testifying. However, during his testimony Webb stated that he believed he had confidential informer status and asserted that he had not waived privilege. The proceedings were stopped immediately and Webb was given time to seek legal counsel.
[23] Webb retained a lawyer and the Court entered into an in camera voir dire within the mistrial voir dire to determine whether Webb's identity was protected by informer privilege.
[24] The Crown advised the court on May 10, 2017, that:
MS. MACKAY: …Corporal Jodi Allison by phone and we had a discussion, which I explained the contents of which to defence and it appears that from his end of the conversation he understood it to be that Mr. Webb had waived any claim he may have had of any informer privilege. It might have been less than clear from the context of the conversation however, Mr. Webb’s end but if you want me to repeat the gist of it, I can certainly do that on the record. That he had had a conversation with him late after court on Monday after speaking with myself, Cst. Allison spoke with Mr. Webb where Mr. Webb was going to be informed that his name might very well come out and that he had previously indicated he’d like his name to be kept out of it. The Crown’s understanding had been if possible. So, I informed Cpl. Allison that I thought it’s quite likely it would come out and why.
COURT: It was the Crown’s understanding as of when, sorry?
MS. MACKAY: Well, as of the end of day Monday, knowing that we were going to be calling evidence in regard to the type of evidence that’s been called in the last couple of days. That Mr. Webb’s name might well come out. There’s references and we knew we’d be calling … McCabe and Blades as a reference in Mr. Blade’s statements as you saw on the voir dire here yesterday to Bruce. Several references to, a couple references to Bruce and other things that would perhaps identify him. But in any event, the conversation as Cpl. Allison described it to me was to the effect that he said, look, your name’s gonna come out. If the defence doesn’t know, they’re gonna know that it’s you, that was the one who facilitated the third and second statements respectively from Mr. McCabe and Mr. Blades. And his understanding was that Mr. Webb had said something to the effect that, I’m okay with it coming out, if it has to come out in order not to derail the case. In other words, there are consequences to maintaining confidentiality in regard to informer issues that I had explained to Cpl. Allison. But he said people are going to know is what Cpl. Allison believes he explained to Mr. Webb and that he understood it and so it may not be as clear from Mr. Webb’s end what Cpl. Allison took from that. But Cpl. Allison took from this that he, Mr. Webb, had waived any claim he may have had off any kind of informer or source information privilege. So that’s as clear as it gets and I’ve explained that to defence counsel.
COURT: And what’s Crown’s position in relation to this?
MS. MACKAY: We don’t believe that Mr., we have to do further research on that but our initial position is that we don’t believe there was any, we certainly weren’t party to it. We don’t know, based on what has been disclosed and the way the information was put to us, as Crown Attorneys, and the way the statements came to us, especially Mr. Blades, in the unredacted form that it came to us, that there was any, certainly from our end we did not understand there was any claim of privilege. If we had understood such, we would have certainly taken steps to redact information and deal with this differently than we had. Our understanding was that he simply understood that he would like to be, things to be kept quiet if they could be. That he wouldn’t like to get involved if he didn’t have to be but and has informed the Court that basically he’d like a head’s up if his name is going to come up.
COURT: Okay. When was the, I’m slightly lost in relation to some of the facts.
MS. MACKAY: Yup
COURT: When was the Crown aware that these statements from Mr. Blades and Mr. McCabe were facilitated by Mr. Webb? When did the Crown become aware of that?
MS. MACKAY: Well, we knew quite early on that there had been some new information come to light and that the police were going to take statements from Mr. Blades and Mr. McCabe and I don’t remember exactly when we knew that Mr., that there was a private investigator involved but it would have been certainly after that time, sometime. We got the statements, I’m not sure exactly when but I’d have to look, check back on any kind of emails. There have been a lot emails on this file as Your Lordship can appreciate but in regard to that, we certainly were aware at some point in time early on that, relatively early on, that there was a, it was through, I think it was really early on that it was through someone who had been acting as a private investigator. That the contact, that they had been twigged to go ask for it. We were, our understanding was that the information had not been, these are the details but that he has more to say and you should go back, which was basically enough of a hint to suggest, the police had never believed. The police did not believe that Mr. McCabe and Mr. Blades had been frank about what they had or hadn’t seen.
COURT: All I’m trying to figure out is, the Crown was aware shortly after receiving the KGB statements that they had been facilitated by a private investigator hired by Mr. Sandeson.
MS. MACKAY: I think that would be fair to say. I would want to check my notes to see exactly the timing of that but I think that would be a pretty fair assessment of it from what I recall at this time.
COURT: Okay. But that information, when was that information that these statements had been facilitated by a private investigator hired by the defence, when was that information given to the defence? Was that just earlier this week or was that way back in October?
MS. MACKAY: Well, specifically it would have been given to them earlier this week but I gotta say that in regard to the content of the Justin Blade statements, I had assumed that Mr., from the content of this that it would have been understood by the defence when they got this that it was their own investigator who was involved. In fact, we were, Ms. McOnie and I were quite surprised that that wasn’t something they already basically felt they knew.
COURT: Okay. That’s something that you thought.
MS. MACKAY: Yes
COURT: But the actual provision of that information wasn’t until this week?
MS. MACKAY: That’s correct, that would be correct
COURT: Okay. All right. And it’s your, the Crown is not asserting privilege on behalf of Mr. Webb and in fact the Crown’s position as I’m hearing you is that the Crown would have never felt that Mr. Webb would be covered by the umbrella of informer privilege. Is that true?
MS. MACKAY: I can’t say that the Crown would, I don’t know My Lord. I haven’t looked into this.
COURT: Okay
MS. MACKAY: Because this was not what we thought was an issue in this case and there have been lots of them. This is the seventh voir dire.
COURT: Yes
MS. MACKAY: So we’ve had lots of issues but that wasn’t one of them until recently, that has just arisen, basically, as far as we were concerned and certainly it’s unfortunate because we would have liked to, if this is an issue, we would have liked to dealt with it early on. Obviously, in regard to the, any claim of privilege it would have been claimed and is claimed or apparently by Mr. Webb, so his name’s already been published as of yesterday I believe. Because it came out in the direct testimony, or cross or whatever but the testimony in front of the jury of Mr. McCabe so that was raised directly then. So, you know, it’s out now. It’s very unfortunate for Mr. Webb of course but the Crown’s understanding was not that he was making a claim of privilege. It was just that he wanted the head’s up and based on what we received and the lack of redaction, I think it’s perhaps understandable why the Crown thought that there was no claim of privilege here.
COURT: Okay.
MS. MACKAY: So that’s as frank as I, I think that’s as thorough as I can make it. Perhaps my friend has some other comments. I need to speak with her for a moment. PAUSE… Right and My Lord as well…
COURT: Just give me one second Ms. MacKay
MS. MACKAY: Sure.
COURT: Sorry, go ahead.
MS. MACKAY: My Lord, Ms. McOnie reminded me that we weren’t told, we certainly were not told of any content of any statement obtained by the defence. Of course, the fact that the private investigator said, as we understood it, you should go talk to Blades. That would be enough of a tip to suggest that he was gonna change his story and say something other than what he had said in the original statement that he had given to the police. But, we weren’t provided any details, such as what was described here in testimony in regard to he saw blood or a body or anything like that of Taylor Sampson. We weren’t provided that type of specific detail so we were never, Ms. McOnie and I were not privy to any details of the investigation that was done by Mr. Webb apparently.
COURT: So, when we get down to where we are now, the Crown isn’t asserting privilege in relation to Mr. Webb. The Crown is indicating that you feel Mr. Webb has waived his privilege in light of the conversations with the Detective Constable Allison?
MS. MACKAY: Well I, you know, I don’t want to speak for Mr. Webb. In regard to that, I’d have to look into privilege issues but as far as we had understood it, he had waived it but based on this conversation, I’m not sure if you can take from that, if one can objectively take from that and express waiver. I’m not sure whether that, because I haven’t looked into the law recently on informer privilege.
COURT: Okay. We’re in a strange area now though because his name is out.
MS. MACKAY: Yup
COURT: He’s been, information is out. He’s been asked numerous questions and he’s in the middle of, he’s under oath in the middle of testifying and is indicating that he never waived his privilege so where do we go from here?
MS. MACKAY: Well, I think it might be that there could be some follow up questions about the conversation he had the other night with Cpl. Allison and he may not feel that he’s expressly waived it. He’s probably pretty upset about the events of the last couple of days, I assume. And he may recall the conversation that he had with Cpl. Allison a couple of evenings ago where some of his information, he may actually agree that some of the things that Cpl. Allison and he, says he and Mr. Webb discussed actually did, were discussed.
[25] A lengthy voir dire followed to determine whether Webb has confidential informer status.
Confidential Informant
[26] The identity of confidential police informants is protected by class privilege. In R. v. Barros, [2011] 3 S.C.R. 368, Binnie J., speaking for the majority, described the importance of police informer privilege:
[1] The jurisprudence establishes that the identity of police informers is protected by a near-absolute privilege that overrides the Crown’s general duty of disclosure to the defence. This privilege is subject neither to judicial discretion nor any balancing of competing interests (although qualified by an “innocence at stake” exception).
[27] The burden is on the individual claiming informer privilege status on a balance of probabilities. In R. v. Basi, [2009] 3 S.C.R. 389, the unanimous judgment was given by Fish J. who disclosed the purpose, scope and operation of informer privilege:
[35] Before turning to that issue, it will be helpful to consider generally the purpose, scope and operation of the informer privilege and the governing principles set out by Bastarache J. in Named Person v. Vancouver Sun, 2007 SCC 43 (CanLII), [2007] 3 S.C.R. 253.
[36] The privilege arises where a police officer, in the course of an investigation, guarantees protection and confidentiality to a prospective informer in exchange for useful information that would otherwise be difficult or impossible to obtain. In appropriate circumstances, a bargain of this sort has long been accepted as an indispensable tool in the detection, prevention and prosecution of crime.
[37] The informer privilege has been described as “nearly absolute”. As mentioned earlier, it is safeguarded by a protective veil that will be lifted by judicial order only when the innocence of the accused is demonstrably at stake. Moreover, while a court can adopt discretionary measures to protect the identity of the informer, the privilege itself is “a matter beyond the discretion of a trial judge” (Named Person, at para. 19).
[38] Whenever informer privilege is claimed, or the court of its own motion considers that the privilege appears to arise, its existence must be determined by the court in camera at a “first stage” hearing. Even the existence of the claim cannot be publicly disclosed. Ordinarily, only the putative informant and the Crown may appear before the judge. In Named Person, however, the Court considered that an amicus curiae may be necessary or appropriate, particularly where the interests of the informant and the Crown are aligned: Named Person, at para. 48.
[39] In determining whether the privilege exists, the judge must be satisfied, on a balance of probabilities, that the individual concerned is indeed a confidential informant. And if the claim of privilege is established, the judge must give it full effect. As we have seen, Named Person established that trial judges have no discretion to do otherwise.
[40] Finally, the informer privilege belongs jointly to the Crown and to the informant. Neither can waive it without the consent of the other.
[41] Though Named Person held that “first stage” hearings must be held in camera, the Court was not called upon to consider whether the hearings must proceed ex parte as well. That is because the privilege was claimed in that case by the informant — the very person before the court on extradition proceedings. And he claimed the privilege not to keep the information out of the hands of any party to the proceedings, but rather to prevent media organizations from accessing information relating to his activities as a police informant. In those unusual circumstances, all of the parties to the proceeding had access to the privileged information; it was only third parties who were excluded.
[42] Like Named Person, this case concerns a claim of informer privilege. Unlike Named Person, however, this case does not concern a fugitive-informant who seeks to prevent disclosure of information to which he is already privy. Rather, it concerns the accused, who seek to obtain disclosure of information which the Crown feels bound to deny them. But these distinctions, significant as they are, do not turn the tide in the respondents’ favour.
[43] It is true, of course, that the respondents are in jeopardy of criminal conviction and its consequences. Their right to make full answer and defence guaranteed by s. 7 of the Canadian Charter of Rights and Freedoms is therefore plainly engaged: R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326. The Court has made clear, however, that the right to make full answer and defence does not alone trigger an exception to the informer privilege: Leipert, at paras. 23‑25. It is only where innocence is at stake that the privilege yields and information tending to reveal the identity of the informant can be disclosed.
[44] It thus remains as true in this case as it was in Named Person that “[w]hile the judge is determining whether the privilege applies, all caution must be taken on the assumption that it does apply” (para. 47). No one outside the circle of privilege may access information over which the privilege has been claimed until a judge has determined that the privilege does not exist or that an exception applies. It follows that the trial judge erred in permitting defence counsel to hear the testimony of an officer tending to reveal the identity of the putative informant at the “first stage” hearing.
[45] To hold otherwise is to place defence counsel in an awkward and professionally undesirable position. The concern is not that defence counsel would intentionally violate their undertakings or the court order; rather, it is that respecting the undertakings and court order would, at best, strain the necessary relationship between defence counsel and their accused clients.
[46] Defence counsel would have to remain constantly on guard never to say or do anything, even inadvertently, that might tend to reveal the informant’s identity. This exceedingly onerous constraint would by its very nature “preven[t] frankness and fette[r] the free flow of information between lawyer and client”, and otherwise impair the solicitor‑client relationship: R. v. G, [2004] EWCA Crim 1368, [2004] 2 Cr. App. R. 37 (p. 630), at p. 635. In certain cases, defence counsel might feel bound to withdraw their representation, caught in a conflict between their duty to represent the best interests of their client and their duty to the court not to disclose or to act on the information heard in camera: R. v. G, at pp. 635‑36.
[47] It is true that defence counsel gave their undertakings of non-disclosure with the consent of their clients. At the time, however, the privileged information was otherwise inaccessible to both the accused and their counsel. Once the information is in the hands of their counsel, the consent freely given beforehand might understandably be viewed by the accused as consent given without choice. And consent thought to have been given without choice, even if not repudiated, is bound to be resented.
[28] Justice Binnie reiterated the Supreme Court of Canada’s direction to protect those individuals covered by informer privilege in Barros:
A. The Importance of Informer Privilege
[30] Police rely heavily on informers. Because of its almost absolute nature, the privilege encourages other potential informers to come forward with some assurance of protection against reprisal. A more flexible rule that would leave disclosure up to the discretion of the individual trial judge would rob informers of that assurance and sap their willingness to cooperate. See Bisaillon v. Keable, 1983 CanLII 26 (SCC), [1983] 2 S.C.R. 60; R. v. Hunter (1987), 1987 CanLII 123 (ON CA), 57 C.R. (3d) 1 (Ont. C.A.); R. v. Scott, 1990 CanLII 27 (SCC), [1990] 3 S.C.R. 979; Named Person v. Vancouver Sun, 2007 SCC 43 (CanLII), [2007] 3 S.C.R. 253; Leipert; and Basi. The obligation to protect confidential sources clearly goes beyond a rule of evidence and is not limited to the courtroom. As the trial judge in this case put it, “The police need help, but people who are available to provide information typically won’t give that information to the police unless they are protected” (A.R., at p. 7).
[31] Of course, not everybody who provides information to the police thereby becomes a confidential informant. In a clear case, confidentiality is explicitly sought by the informer and agreed to by the police. As noted in Basi, at para. 36:
The privilege arises where a police officer, in the course of an investigation, guarantees protection and confidentiality to a prospective informer in exchange for useful information that would otherwise be difficult or impossible to obtain.
Bisaillon, however, added that the promise need not be express. It may be implicit in the circumstances:
The rule gives a peace officer the power to promise his informers secrecy expressly or by implication, with a guarantee sanctioned by the law that this promise will be kept even in court, and to receive in exchange for this promise information without which it would be extremely difficult for him to carry out his duties and ensure that the criminal law is obeyed. [Emphasis added; p. 105.]
[32] A claim to informer status is always open to challenge by the defence. The Crown is better able to meet that challenge if it can point to clear evidence of informer status being conferred explicitly rather than after-the-fact supposition. Keeping in mind that informer’s privilege was created and is enforced as a matter of public interest rather than contract, it might be argued that in a situation of serious potential danger, the informer privilege (or other public interest privilege) might apply even in the absence of the contract-type elements of offer and acceptance. However, that question does not arise on the facts of this case and I say no more about the issue.
[33] Unfounded claims to different types of privilege are made from time to time and, as counsel for Mr. Barros points out, there have been cases where the police have claimed informer status in manifestly inappropriate circumstances; see, e.g., R. v. McCormack, 2009 CanLII 76382 (ON SC), 2009 CanLII 76382 (Ont. S.C.J.). It would not, I think, be in the interest of justice to accept the proposition of the majority in the Alberta Court of Appeal that would prevent an accused from ascertaining independently of the state whether facts for such a challenge exist. No protection is afforded to a “source” whose conduct goes beyond the provision of information and acts as an “agent provocateur” or is otherwise a material witness to the crime. Both the agent provocateur and the material witness play an active role in criminal investigations and proceedings that goes beyond “tipping” the police. Once a police informer goes into the “field” and acts as a police agent, the informer privilege is no longer applicable to prevent disclosure of his or her identity in respect of the events in which he or she acted as an agent: R. v. Broyles, 1991 CanLII 15 (SCC), [1991] 3 S.C.R. 595, at pp. 607-9; R. v. Davies (1982), 1 C.C.C. (3d) 299 (Ont. C.A.), at p. 303; R. v. Babes (2000), 2000 CanLII 16820 (ON CA), 146 C.C.C. (3d) 465 (Ont. C.A.). This does not mean, of course, that the informer loses protection in other cases where he or she has not stepped out of the protected role.
[34] This Court in Leipert held that the rule of non-disclosure binds the state unless the accused can establish “a basis on the evidence for concluding that disclosure of the informer’s identity is necessary to demonstrate the innocence of the accused . . . . [M]ere speculation that the information might assist the defence is insufficient” (per McLachlin J., at para. 21 (emphasis added)). This is the “innocence at stake” exception to the general public interest obligation of the state to protect the confidentiality of informer identity. The importance of informer privilege should not be allowed to trump “the right of an individual accused to establish his or her innocence by raising a reasonable doubt as to guilt [which] has always remained paramount” (Scott, at pp. 995-96).
[35] The courts will enforce the privilege where it is applicable whether it is claimed or not (Bisaillon, at pp. 84 and 88; Basi, at para. 38), and, as stated, without the balancing of competing interests that applies to some other forms of privilege such as journalistic privilege, R. v. National Post, 2010 SCC 16 (CanLII), [2010] 1 S.C.R. 477, or public interest privilege generally, Carey v. Ontario, 1986 CanLII 7 (SCC), [1986] 2 S.C.R. 637, unless the protection is waived by the informer and the state: Basi, at para. 40; Named Person, at paras. 22-23; Leipert, at paras. 12-15; and Bisaillon, at p. 93.
[36] These general principles accommodate the rights of the accused and the interests of society and it is important that this equilibrium be retained. The argument of Mr. Barros is that the extension of informer privilege to prohibit any efforts by an accused to identify independently of the state the identity of the source would upset this equilibrium. I agree with that concern.
[29] There is no claim in this case that Sandeson’s innocence is at stake such that Webb’s name needs to be disclosed. Both the Crown and Sandeson argue either that Webb never had informer privilege status or, that by earning Blades’s trust and then stepping into the field to introduce Blades to the police so that the police could obtain his KGB statement, Webb lost his status as a confidential informant.
Police Informer vs. Police Agent
[30] In R. v. G.B., 2000 O.A.C. 386, Morden J.A., speaking for the unanimous court, explained the difference between a police informer and a police agent:
Is Informant #1 an Informer or an Agent?
[10] In general terms, the distinction between an informer and an agent is that an informer merely furnishes information to the police and an agent acts on the direction of the police and goes “into the field” to participate in the illegal transaction in some way. The identity of an informer is protected by a strong privilege and, accordingly, is not disclosable, subject to the innocence at stake exception. The identity of an agent is disclosable.
[31] While Webb did not participate in an illegal transaction, he did “go into the field” by meeting with Blades and the police. At paragraph 33 of Barros, Binnie J. confirmed that no protection is afforded to a “source” who plays an active role in the criminal investigation, acts in a manner that goes beyond “tipping” the police and/or goes into the “field” and acts as a police agent. Justice Binnie confirmed that if a confidential informant steps into the public domain to assist the police he can lose his confidential informant status. In doing so, Binnie J. referred to R. v. McCormack, 2009 CanLii 76382 (Ont.S.C.J.). In McCormack, Croll J., had to determine whether a number of individuals actually were confidential informants and stated in relation to one of those people:
[20] Again, there should have been no issue that Ms Pinn was being used as an agent by Inspector Evans and not as a confidential informant. This is illustrated, for example, by the fact that Ms Pinn brought Sam Salerno to a meeting with Inspector Evans, with the hope of recruiting him to be part of the investigation; she participated in the meeting where purportedly confidential informant status was being conferred on Mr. Salerno; and she agreed to be a conduit between Mr. Salerno and Inspector Evans.
[32] Webb argues that a confidential informant only loses the protection of confidentiality when they “step into the field” to participate in an illegal act or arrange for the accused to participate in an illegal act. The Crown and Sandeson argue that Webb went into the field and was acting as an agent of the state when he assisted the police in meeting with Blades. In R. v. Broyles, [1991] 3 S.C.R. 595, [1991] S.C.J. No. 95, Iacobucci J. discussed when an individual becomes an agent of the state and stated on behalf of the majority:
[20] This case requires this Court to answer two questions which were not raised in Hebert. In Hebert it was indisputable that the undercover officer was an agent of the state. In this case, Ritter was not a police officer. He was a friend of the appellant who was asked to visit the accused by the authorities, and whose visit was facilitated by them. We must therefore decide if Ritter was an agent of the state for the purposes of s. 7. Moreover, it is not self‑evident, in light of Hebert, whether the manner in which Ritter conducted his conversation with the appellant did or did not infringe the appellant's s. 7 rights. On the facts of Hebert, it was unnecessary to define "elicitation" precisely, whereas such a definition is required to reach a conclusion in this case.
[33] Justice Iacobucci described the need to determine the relationship between the informer and the authorities during the particular exchange or contact with the accused. Here we are not dealing with a statement of the accused, but instead are dealing with a statement of crown witnesses. However, in my opinion much of the Broyles analysis is helpful when considering the unusual facts of this case. Justice Iacobucci stated in Broyles at para. 24:
In determining whether or not the informer is a state agent, it is appropriate to focus on the effect of the relationship between the informer and the authorities on the particular exchange or contact with the accused. A relationship between the informer and the state is relevant for the purposes of s. 7 only if it affects the circumstances surrounding the making of the impugned statement. A relationship between the informer and the authorities which develops after the statement is made, or which in no way affects the exchange between the informer and the accused, will not make the informer a state agent for the purposes of the exchange in question. Only if the relationship between the informer and the state is such that the exchange between the informer and the accused is materially different from what it would have been had there been no such relationship should the informer be considered a state agent for the purposes of the exchange. I would accordingly adopt the following simple test: would the exchange between the accused and the informer have taken place, in the form and manner in which it did take place, but for the intervention of the state or its agents?
[34] In discussing elicitation in the context of an informer obtaining a statement from an accused person, Iacobucci J. said, at paras. 31-35:
In my view, it is difficult to give a short and precise meaning of elicitation but rather one should look to a series of factors to decide the issue. These factors test the relationship between the state agent and the accused so as to answer this question: considering all the circumstances of the exchange between the accused and the state agent, is there a causal link between the conduct of the state agent and the making of the statement by the accused? For convenience, I arrange these factors into two groups. This list of factors is not exhaustive, nor will the answer to any one question necessarily be dispositive.
The first set of factors concerns the nature of the exchange between the accused and the state agent. Did the state agent actively seek out information such that the exchange could be characterized as akin to an interrogation, or did he or she conduct his or her part of the conversation as someone in the role the accused believed the informer to be playing would ordinarily have done? The focus should not be on the form of the conversation, but rather on whether the relevant parts of the conversation were the functional equivalent of an interrogation.
The second set of factors concerns the nature of the relationship between the state agent and the accused. Did the state agent exploit any special characteristics of the relationship to extract the statement? Was there a relationship of trust between the state agent and the accused? Was the accused obligated or vulnerable to the state agent? Did the state agent manipulate the accused to bring about a mental state in which the accused was more likely to talk?
In considering whether the statement in question was elicited, evidence of the instructions given to the state agent for the conduct of the conversation may be important. As McLachlin J. noted in Hebert, supra, evidence that the agent was instructed not to initiate the conversation nor to ask leading questions will tend to refute the allegation that the resulting statement was obtained in violation of s. 7. I would add, however, that in my opinion evidence that the state agent was instructed not to elicit information will not end the inquiry. The authorities may not take the benefit of the actions of their agent which exceed his or her instructions. To hold otherwise would be to ignore the fact that the primary emphasis of the right to silence in s. 7 is on the use of the coercive power of the state against the suspect. The authorities ought not to be able to shield themselves behind the subtleties of their relationship with the informer. It is the authorities who are in a position to control the actions of their informer; if they fail to do so, they ought not to benefit from that failure at the expense of the accused. See United States v. Henry, 447 U.S. 264 (1980), at pp. 271‑72.
(c) Application to the Facts of This Case
There is no question that Ritter was an agent of the state during his conversation with the appellant. It is clear on the evidence that the meeting was set up and facilitated by the police. Ritter was able to have an "open visit" with the appellant, which made possible a free‑ranging conversation, only because of the intervention of the police. In fact, Ritter went so far as to admit that he was not frightened during his visit with the appellant "because it had been set up by the police". Moreover, in their discussions with Ritter, the authorities effectively instructed him to elicit information about the death of Briggs, as the following excerpt from Ritter's cross‑examination illustrates:
Q.So Detective Anderson phoned you, and he said what?
A.Well, he said ‑‑‑ I asked him how the investigation was going. He said they were having a bit of problems [sic]. James wasn't saying anything. He asked me if I would be interested in wearing a body pack and talking to James. If he would set up the meeting, would I talk to James.
...
Q.It became clear to you that Detective Anderson required your assistance because James was not talking to the police about this?
A.Yeah, I suppose.
...
Q.... Why did you agree to do it?
A.Because I thought it was the right thing to do.
Q.Why did you think it was the right thing to do?
A.Well, the police were having trouble, and I thought if I could help out, why shouldn't I.
...
Q.What were you going to talk to James about?
A.They wanted to know if I could find out whether he killed her or not.
Q.And this was all on the phone with Detective Anderson the first time?
A.Yes.
If the authorities had not intervened, the conversation between Ritter and the appellant would either not have occurred at all, or else would have taken a materially different course. I would therefore conclude that for the purposes of the right to silence in s. 7 of the Charter, Ritter was an agent of the state. This issue was also effectively conceded by the respondent.
[35] Of course, we are not dealing here with an informer eliciting a statement from an accused such as to engage an accused’s s.7 Charter rights. Nonetheless, it is clear from the testimony on the voir dire that, but for the actions of Webb in gaining Blades’s trust and then meeting with Blades and the police, the police and the Crown would not have obtained Blades or McCabe’s KGB statement.
Loss of Confidentiality
[36] While the police might have been bound by informer privilege had Webb merely contacted them to advise them to re-interview Blades and McCabe, any possible protection of his identity was lost when he “stepped into the field” to meet the police with Blades at Blades residence. Even if the police and the Crown may have been bound by privilege, Blades would not be so bound. Blades mentions “Bruce” several times in his KGB statement. Blades could tell whoever he wanted about Webb’s involvement.
[37] Solicitor-client privilege is another class privilege recognized by the Supreme Court of Canada. While this case does not involve solicitor-client privilege, some assistance can be found in principles related to what can be deemed a breach of that privilege. In R. v. D., (1982), 138 D.L.R. (3d) 221, 1982 CanLii 3324 (Ont. C.A.), Martin J.A. delivered the unanimous judgement of the court and stated:
[52] An essential condition of the solicitor-client privilege is that the communication in respect of which privilege is claimed has been made in circumstances which indicate that it was made with the intention of confidentiality. Generally, if the communication is intended to be revealed to a third person, the element of confidentiality will be lacking. Similarly, in most cases the presence of a third person when the communication was made indicates that the communication was not intended to be confidential. But the presence of a third person may not have that effect; for example, it will not have that effect if it is reasonably necessary for the protection of the client's interest: see 8 Wigmore on Evidence, 3rd ed. (McNaughton Revision, 1961), pp. 599-603; McCormick on Evidence, 2nd ed. (1972), pp. 187-9; Cross on Evidence, 5th ed. (1979), p. 289.
Defence Ability to Identify an Informant
[38] In Barros, Binnie J. determined that the defence is entitled to try to legally determine the identity of a confidential informant:
B. Was Mr. Barros Bound by Informer Privilege?
[37] The duty to protect and enforce informer privilege rests on the police, the Crown, and the courts, but we have been referred to no prior case where the duty has been extended to the accused and his or her representatives such as Mr. Barros apart from the exceptional case of inadvertent disclosure to defence counsel: see R. v. Hirschboltz, 2004 SKQB 17 (CanLII), [2006] 1 W.W.R. 174, and R. W. Hubbard, S. Magotiaux and S. M. Duncan, The Law of Privilege in Canada (loose-leaf), at pp. 2-43 and 2-44. There is no authority for the proposition that the substantive rule of confidentiality means that an accused and his representatives are prohibited from attempting to identify an informant for a lawful purpose and by lawful means. From the perspective of an accused, discovery of the identity of a source, and the circumstances under which his or her information was obtained by the police, may legitimately play a role in making out a full answer and defence. There are occasions mentioned in the cases where the “source” turned out to be non-existent, wholly unreliable, or had participated in an entrapment. In McCormack, for example, it was held that the police had deliberately misrepresented three sources, two of whom they had instructed to act as agents and one of whom was a civilian employee of the police force, as confidential informers simply as an “investigative technique” (paras. 7-21).
[38] Informers come in all shapes and sizes, from the concerned neighbour who calls “Crime Stoppers” about alleged child abuse next door to the drug dealer or the office whistleblower. Some informers are model citizens, others not so much so; some act in the public interest while others may be driven by motives that are wholly unsavoury. The defence is entitled to do what it can to poke holes in the prosecution’s case, provided that the methods used are otherwise lawful. An accused is within his or her rights to gather whatever information may raise a reasonable doubt even where the conditions triggering the “innocence at stake” exception are not satisfied. That exception pertains to disclosure by the state of the informer’s identity, not to information obtained by the defence through its own resources.
[39] Criminalizing efforts by the defence to ascertain the identity of the source independently of the Crown would in many cases render illusory the right to challenge his or her “informer” status. The Crown ought not to be able to rely on the prohibition against disclosure by the state of allegedly privileged information to prevent an independent defence investigation that may yield information which will result in the rejection of the privilege claim itself.
[40] The majority in the court below held that apart from the “innocence at stake” exception an accused has no “right” to disclosure of a confidential informant’s identity (para. 41). This is true, but the question is not whether he has a “right” to disclosure. He certainly has a “right” under s. 7 of the Charter to defend himself and, generally speaking, what is not prohibited by law (or professional ethics in the case of defence counsel) is permitted.
[41] Whether an investigation has crossed a line into obstruction of justice must be determined on a case-by-case evaluation of the totality of circumstances, which may include the methods and purpose of the defence investigation, and the use to which any information obtained is put. If all the elements of the offence of obstruction are met, a bald assertion that the investigation furthers the mounting of a full answer and defence will not excuse otherwise unlawful conduct.
[42] In much the same vein, the fact that an independent investigation of a police informer is permissible (so long as it is carried out in a manner that does not cross the line into criminality) does not mean that the investigator is free to use the fruits of an investigation as he or she sees fit. Where an informant is in a position of significant danger, as is frequently the case in dealing with organized crime and drug trafficking offences, the investigation must proceed in a responsible manner with due regard to the potential of obstructing justice.
[43] Discussions with prosecutors or police officers carry particular dangers. These individuals are bound to protect the identity of informers, and efforts to elicit information they are not permitted to disclose will not be tolerated.
[44] Accordingly, the general prohibition against defence investigation propounded in the court below is too broad, in my respectful opinion. The state will refuse to disclose any information that would tend to reveal an informer’s identity, and this will be enforced in the public interest, but the defence, including in this case Mr. Barros in his function as private investigator, is not bound by any such duty in undertaking its own investigation independently of the courts and the prosecution. Of course, a lawful activity may be pursued by unlawful means or for an unlawful purpose, but that is a different issue and one that is raised on the facts of this case and to which I now turn.
[39] While the defence did not attempt to determine the identity of a police informant since they did not know anyone was informing on Sandeson, had the police or the Crown disclosed the existence of an informant who suggested the police take new statements from Blades and McCabe, the defence would have had the ability to conduct an investigation as to the informant’s identity. Since the name “Bruce” is mentioned so prominently in Blades KGB statement, this would not have been a lengthy or complex investigation.
Analysis
[40] The complete and unvetted KGB statements of Blades and McCabe were disclosed by the Crown to Sandeson in a timely fashion. What was not disclosed was Webb’s involvement with the police in obtaining the October 2016 statements from Blades and McCabe.
[41] The police say that they told the Crown that they considered Webb a confidential informant. The Crown says it was unaware that the police still considered him a confidential informant. The Crown confirmed during the voir dire that they did not disclose Webb’s involvement in the statement taking until mid-way through the trial just prior to/in the middle of McCabe’s testimony in front of the jury. The Crown said that they believed the defence was already aware of Webb’s involvement and/or must have become aware of Webb’s involvement when they read Blades’s KGB statement. The defence says that they did not become aware of Webb’s involvement until they were advised by the Crown during the trial.
[42] Blades was fully aware that Webb took a statement from him. Blades asked Webb to contact the police to advise them that he now wanted to provide a different statement than the one he had provided to the police in August 2015. Blades is not bound by privilege. When Blades testified, it was open for Sandeson to ask him why he had provided a new statement to the police in October 2016. Webb was clearly identified in Blades’s KGB statement as being involved in assisting Blades with the provision of his new statement. In the KGB statement Blades inferred that the police and Webb were in communication with each other.
[43] Lane described Webb as arriving at his home some months in advance of October 2016 to advise that he felt Sandeson was guilty and was concerned that the police were not doing a good job with their investigation. Webb did not ask Lane for informant status at that time.
[44] Lane also testified that when Webb stopped him on the side of the road in October 2016 he expressed his interest in having his name kept quiet, but provided the information about Blades to Lane without any assurances or guarantees that he would be considered a confidential informant. Lane says that Webb did not make the provision of the information about Blades conditional upon being provided informant status.
[45] Boyd says that on the date Webb introduced Blades to the police, Webb said something to the effect: “I’d appreciate it if you could keep my name out of it as much as you can but if it comes out so be it . I’d rather see a murderer go to jail.” Boyd could not recall any discussions with Webb about confidentiality and he did not recall Webb advising that he was assisting the police contingent on confidentiality. When meeting at Blades’s residence in October 2016, Boyd does recall Webb stating something like “I’d appreciate it if you could keep my name quiet” or “keep my name as quiet as you can”. Boyd took this to mean that Webb did not want his name mentioned around the police station.
[46] Allison testified during the voir dire that he was adamant that Webb was a confidential informant. He also said that Webb never asked for informant status in exchange for providing the information or assisting with Blades but did ask to “have his name kept out of this”. While testifying Allison described Webb as having “quasi-privilege” and felt “there was some sort of privilege there.” Allison confirmed that at some point Webb told him that he wanted to have his name kept out of things as much as possible but “if his name came out then so be it as he wouldn’t want the person to get off”.
[47] Allison said that before and after the statement was taken from Blades he was concerned about being able to keep Webb’s involvement quiet but proceeded to involve Webb anyway. Allison said that he knew Blades’s KGB statement mentioned “Bruce” and felt that anyone who knew the details of the file would be able to figure out what had happened. He said that he felt Blades’s statement should have been redacted to obscure references to “Bruce” however he said that editing of disclosure was not his job.
[48] Allison felt Webb was an informant. However, once the trial was underway, Allison told the Crown that Webb had waived his privilege. Allison says that he felt Webb would have a hearing to confirm his waiver, however this sentiment on the part of Allison never appears to have been mentioned to anyone prior to Allison’s testimony on the voir dire.
Conclusion
[49] Webb retired from the RCMP as a Staff Sergeant with 35 years of experience in policing. He confirmed during the voir dire that he handled sources and confidential informants during his policing career. He went Lane’s house months before the KGB statement was taken from Blades to advise him that he thought Sandeson was guilty and that the police were not doing a good job with the investigation. There is no suggestion that he asked for informant status at that time.
[50] Webb was emotional after he took his own statement from Blades in October 2016, and stopped Lane on the roadside while walking his puppy. He told Lane about his meeting with Blades without receiving any guarantee of anonymity. He then met with Blades and the police together to assist the police in obtaining a statement from Blades. Having taken a statement from Blades which was different from Blades’s original statement to the police, Webb says that he was concerned about his own possible criminal culpability for obstruction of justice, yet he then proceeded to obtain a similar statement from McCabe shortly thereafter.
[51] Webb felt the police were not doing a good job investigating Sandeson. According to Boyd and Allison, Webb essentially told them that while he wanted his name to be kept quiet, if it had to come out to prevent Sandeson from going free then so be it. Webb agreed that he told various officers that he would appreciate a heads up if his name was going to come out.
[52] The balance of probabilities standard should be applied very generously in favour of a citizen seeking confidential informer status. Yet, as Fish J. stated in Basi:
[52] Of course, withheld material over which the informer privilege is claimed might in some instances assist the defence, for example, by providing a trail to other relevant and helpful evidence, or in preparing and conducting the cross‑examination of Crown witnesses. The withheld material might even be indicative of innocence, while still falling outside the narrow “innocence at stake” exception to the privilege. It is therefore essential that claims of privilege be resolved accurately and fairly, bearing in mind that ex parte proceedings raise serious procedural fairness concerns of particular significance in the conduct of criminal prosecutions, where the liberty of the accused is at stake.
[53] While the identity of confidential informers must be closely guarded, if Webb ever was a source or a confidential informant in these circumstances, once he met with the police and Blades together to introduce them and to assist in making Blades comfortable such that he would provide a statement to the police, he lost any possible status as a confidential informant. While Webb was doing what he thought was “the right thing” and did not participate in criminal activity or act as an agent provocateur, he certainly “stepped into the field” when he met with the police and Blades together. Webb created a situation of trust between himself and Blades. He then convinced Blades to provide a statement to the police. He then set up a meeting between himself, Blades and the police to facilitate the provision of a statement by Blades to the police.
[54] There could be no expectation of privacy by Webb in these circumstances. He was directly involved in assisting the police obtain a statement from Blades. In addition to that, could Webb really have expected Blades would be bound to keep this meeting with himself and the police a secret? By meeting with the police and Blades together in these circumstances, Webb abandoned any possible status as a confidential informant and jumped directly into the role of being an active participant in the police investigation. Webb was not merely a citizen who quietly provided the police with information about criminal activity with the expectation of confidentiality. Instead he became an active participant in the criminal investigation and as such is not a source or a confidential informant.
Arnold, J.