Between
Her Majesty the Queen, and
Rohan Webster
[1997] O.J. No. 5847
Court File No. F1179/96
Ontario Court of Justice (General Division)
Toronto, Ontario
Dilks J.
March 19, 1997.
(17 pp.)
Criminal law - Evidence and witnesses - Admissibility and relevance - Voir dire.
Voir dire concerning the admissibility of evidence the defence proposed to adduce in its cross-examination of a Crown witness. The Crown opposed the introduction of such evidence on the ground of Crown privilege and invoked section 37 of the Canada Evidence Act. Webster was charged with trafficking in crack cocaine. Asselin, an undercover officer, obtained from officer Dion information about drugs and a supplier known as Redman. He reached Redman. They arranged for Redman to sell $60 worth of cocaine to Asselin at Redman's apartment building. Asselin arrived to find Redman and Webster outside the building. Webster introduced himself as Spider and said that he knew where to get crack cocaine. Before leaving he subjected Asselin to a thorough patting down body search. Asselin was wearing an officer protection kit, a one way transmitter. Webster missed it in his search. Webster and Redman returned and Redman handed the drug to Asselin in exchange for the $60. Redman was arrested and pleaded guilty to a drug offence. The position of the defence was that the patting down did not take place. The device worn by Asselin was standard in his unit. There were a limited number of places on the body where it could be hidden.
HELD: Asselin could be examined as to the size, shape and/or location on his person of the device but not as to alternate locations. The general principle was that all relevant evidence should be admissible. It was subject to exceptions, including informer privilege or that of a national security interest invoked under section 38 of the Act or Crown privilege. The Crown's privilege had to yield to Webster's right to make full answer and defence.
Statutes, Regulations and Rules Cited:
Canada Evidence Act, ss. 37, 37(1)(b), 38. Canadian Charter of Rights and Freedoms, 1982, s. 7.
Counsel:
K. Dunlop, for the Crown.
L. Sabsay, for the accused.
1 DILKS J.:- Prior to jury selection, counsel indicated to me that they required a ruling on the admissibility of certain evidence which the defence proposes to adduce in its cross-examination of one of the Crown witnesses. The Crown opposes the introduction of such evidence on the grounds of Crown privilege and invokes Section 37 of the Canada Evidence Act. I agreed to convene a voir dire.
2 The evidence on the voir dire consists of the viva voce testimony of Detective Constable Dion, the stated positions of the Crown and defence, and a transcript of the evidence taken at the preliminary hearing on November 1st, 1996 in this matter, as well as a transcript of the preliminary hearing held in the case against one Deon A. Campbell on January 6th, 1997.
3 The accused is charged with trafficking in crack cocaine. Briefly stated, the allegations against the accused are as follows: The undercover officer, Detective Constable Asselin, obtained from Detective Constable Dion information about drugs and a supplier known as Redman. Asselin subsequently reached the pager number that Dion also furnished him with and was able to reach Redman. The two arranged for $60 worth of crack cocaine to be sold by Redman to Asselin at the former's apartment building.
4 Armed with marked buy money, Asselin arrived to find Redman and the accused outside the building. The accused indicated that Asselin was to follow them into the lobby. Once inside, the accused introduced himself as Spider and said that, while he himself did not sell crack cocaine, he knew where to get some if Asselin would just wait.
5 Before leaving, the accused subjected Asselin to a thorough patting down body search. At the time, Asselin was wearing an officer protection kit known familiarly as an OPK which is a one way transmitter which, once activated surreptitiously by the undercover officer, enables a listening police officer to hear everything in the undercover's immediate area. As the name implies, it is for the undercover officer's protection and safety so that other police officers can respond if the undercover officer appears to be in any trouble. According to Asselin, the accused missed the OPK in his search.
6 Eventually, the accused and Redman returned, and Redman handed the drug to Asselin in exchange for $60. Shortly thereafter, Redman is arrested in possession of the marked money. He later pleaded guilty to a drug offence.
7 Evidence will be given of other involvement of the accused, including asking Asselin if he needed $60 worth of crack cocaine and going to the door and looking outside as it making sure that they weren't being watched.
8 The position of the defence is that the patting down just did not take place. The argument is that the body search as described by Asselin would have made the accused aware of the presence of the OPK, depending on its size, shape and location. In order to be able to develop this argument and present it effectively to the jury, the defence contends that it is necessary that evidence be introduced of the size, shape and location of the OPK.
9 The Crown argues that the publication of this information would endanger the lives of undercover officers and thereby undermine police efforts to combat trafficking in narcotics.
10 The evidence is that the particular device worn by Asselin was a standard one in his unit and was in fact the only type available to that unit. There were also only a limited number of places on the body where the device could be hidden.
11 Finally, there is evidence that, at a preliminary hearing held in the case against Deon A. Campbell on January 6th, 1997, some, but not all, of the dimensions of the very same type of device were revealed, subject of course to the non-publication order made by the presiding judge.
12 I turn now to the case law and begin with the general principle that all relevant evidence should be admissible. This rule, of course, is not absolute and is subject to many time-honoured exceptions. One such limitation on the general rule is privilege, usually invoked as a common law right with respect to the identity of police informers and called informer privilege, or that of a national security interest invoked under Section 38 of the Canada Evidence Act, or to preserve the confidentiality of police investigative techniques, or to safeguard the security of police officers called Crown privilege and statutorily set out in Section 37 of the Canada Evidence Act.
13 As Madam Justice L'Heureux-Dube put it in Reg. v. Beharriell reported at 103 C.C.C. (3d) 92 at page 120:
"Privilege constitutes a limit upon the truth-finding principle of our justice system and, consequently, may impair the accused's full enjoyment of his or her right to respond to criminal accusations."
14 Just as the general rule is not absolute, neither is the privilege. It must yield to more powerful considerations such as the accused's right to a fair trial as embodied in Section 7 of the Charter and more usually expressed in the sense of being able to make full answer and defence. That yielding again is not absolute. It depends on the circumstances.
15 On the same page in 1, Madam Justice L'Heureux-Dube wrote:
"When the enforcement of a privilege means that the accused will be limited as to his or her right to make full answer and defence to criminal accusations, this court has strongly tended to favour disclosure. The informer privilege, for instance, will be set aside if the confidential material can demonstrate the innocence of an accused person."
16 Mr. Justice Proulx of the Quebec Court of Appeal put it this way in Reg. v. Khela, 68 C.C.C. (3d) 81 at 87:
"Though public interest makes secrecy of the informer's privilege necessary, this rule is not absolute. Since the inception of the rule, the courts, as in R. v. Hardy in 1794, have conceded that the identity has to be disclosed where 'it is necessary to the investigation of the truth of the case.'"
17 Again in Reg. v. Beharriell, Madam Justice L'Heureux-Dube at page 108 wrote:
"'In Canada, very few communications are recognised as privileged either at common law or under statutory law. At common law, the solicitor-client privilege as well as the informer privilege are fully recognised. These privileges are not absolute however; they must yield, in some circumstances, to the accused's right to make full answer and defence."
18 Of the three types of privilege interest mentioned, and I leave aside any discussion of the solicitor-client privilege, the national interest must surely rank as highest. As to informer privilege and Crown privilege, it has been established that the former carries more weight.
19 I am sorry, I am going to have to suspend operations because I find that I neglected to bring down a case that I want to quote from. I will just rise for a few minutes.
20 THE COURT: In Reg v. Meuckon, 57 C.C.C. (3d) 193, the British Columbia Court of Appeal had to consider the need to keep confidential police techniques to simulate the ingestion of narcotics. At page 199, Mr. Justice Lambert, in delivering the judgement of the court, said:
"'Counsel for the accused was trying to show that it could not be done effectively, that Constable Gulayets must have actually ingested the cocaine, and that Constable Gulayets was less than credible in his testimony on this point and might be regarded as less than credible on other points. Crown counsel objected to this line of cross-examination on the ground that it would expose police methods and might endanger other police officers. The objection was essentially one of Crown privilege. Counsel for the appellant on the appeal argued that the trial judge erred in law in refusing to permit this line of cross-examination.The claim that was made by the Crown at trial was not a claim intended to protect the identity of a police informer. It was a claim of Crown privilege and as such it was governed by s. 37 of the Canada Evidence Act."
21 Against the need to recognize and protect the confidential nature of police investigative techniques stands the accused's right to make full answer and defence. The former need is squarely illustrated in the remarks of Mr. Justice Cory in Reg. v. Scott, a decision of the Supreme Court of Canada reported at 61 C.C.C. (3d), 300 at 314. Writes Mr. Justice Cory:
"Trafficking in narcotics is a lucrative enterprise. The retribution wreaked on informers and undercover officers who attempt to gather evidence is often obscenely cruel. Little assistance can be expected from informers if their identity is not protected. There can be no relationship of trust established by the police with informers without that protection. If the investigation of drug-related crime is to continue then, to the extent it is possible, the identity of informers must be protected."
22 While the statement tends to concentrate on informers and to highlight the reason why informer privilege is held in such an elevated position, it also specifically mentions undercover officers and applies to them equally. As indeed it is in most situations when the admissibility of evidence is in issue, it becomes then a matter of weighing in balance competing interests.
23 Although the exercise was not necessary in Reg. v. Meuckon because the case really turned on entrapment, Mr. Justice Lambert nevertheless proceeded to outline the procedure to be adopted in such a weighing exercise. He wrote:
"In my opinion, if the privilege is claimed in a criminal trial, the trial judge must decide first whether the information might possibly affect the outcome of the trial. His decision on that question may well be influenced by whether the trial is being conducted by a judge alone or by a judge and jury. If a decision to uphold the claim of privilege and to prevent the disclosure of the information could not affect the outcome of the trial, then the privilege claim should generally be upheld. But if the decision to uphold the claim of privilege might affect the outcome of the trial, then the trial judge must consider whether the upholding of the claim of privilege would have the effect of preventing the accused from making full answer and defence. If the trial judge concludes that the claim of privilege would have that effect he should then consider giving the Crown the alternative of either withdrawing the claim of privilege or entering a stay of proceedings. If the Crown refuses to do either, then the trial judge may permit the introduction of the evidence though the trial judge may impose whatever safeguards seem appropriate.In short, the trial judge should consider whether the public interest in allowing the accused to make full answer and defence to a criminal charge can be overridden by the interest asserted by the Crown. The ultimate safeguard of the privileged information lies in the Crown's power to enter a stay of proceedings."
24 That objections on the grounds of informer privilege so often prevail is attributable not only to the weight traditionally given to that concept but also to the fact that in most cases the identity of the informer is quite irrelevant and cannot possibly affect the outcome of the trial.
25 The attack on informer privilege is often for reasons other than the trial itself. For example, to gain revenge or as a tactic to force the police into a withdrawal of the charges. In others, it amounts to little more than a fishing expedition.
26 In the case of Mr. Webster, it is anything but a fishing expedition. Depending on the size, shape and location of the device, it will be more or less likely that a search such as described by the undercover officer would have made apparent the fact that he was wearing the device.
27 In my view, a determination of that question could well raise a reasonable doubt in the eyes of the jury as to the reliability of Asselin's evidence, not only on the subject of the search itself, but generally with respect to his other evidence as well.
28 I must conclude then that this is one of those exceptions to the exceptions, so to speak, where the Crown's privilege must yield to the accused's right to make full answer and defence. Accordingly, my ruling is that Asselin may be cross-examined as to the size, shape and/or location on his person of this particular device, but not of course as to any alternate locations.
29 Is there anything in the ruling that requires clarification by the defence?
30 MR. SABSAY: Not from me, thank you, your honour.
31 THE COURT: Ms. Dunlop?
32 MS. DUNLOP: No, your honour. The ruling seems clear enough on what the court would ...
33 THE COURT: Now, Ms. Dunlop, do you wish to have a moment to reflect on what should happen now?
34 MS. DUNLOP: I would like more than a moment. I've discussed this with my friend, the possible contingencies of what would be occurring ...
35 THE COURT: All right.
36 MS. DUNLOP: ... and I am going to be asking that the matter be adjourned until Friday, subject to your honour's approval, so that I can take the matter up with the Department of Justice ... people in the Department of Justice to consider the position.
37 THE COURT: It's rather a long time, but ...
38 MS. DUNLOP: Well, there is more than just the issue of a stay. As I understand it, there is also the possibility given by Section 37(5)(B) of an appeal within ten days to the Ontario Court of Appeal, and I would like to have the time to review this case. I understand my friend has no objections to that, subject to your honour of course.
39 MR. SABSAY: My understanding, your honour, is that in any event, given the ruling, whether my friend enters a stay or contemplates an appeal, I don't believe we will empanel the jury, so on that basis I have no objection to the matter adjourning to Friday.
40 THE COURT: Is there jurisprudence that says that the appeal is of right and immediate rather than just simply providing a ground of appeal? I Can see the reasons why an immediate appeal would be reasonable.
41 MS. DUNLOP: So could I, your honour, and I have a concern that if the Crown is forced to act too precipitously and perhaps enter a stay, if indeed that is what is being contemplated, that may foreclose the avenue that is opened by Subsection (5), and I want to deal with that as well.
42 And so, in considering all the options available, as I indicated to counsel, it would be, from the Crown's perspective, better to have that amount of time to consider all options before proceeding.
43 THE COURT: Very well. Well, I won't try to anticipate what your position will be made then, but we will simply take it from there, whatever it is. And the matter will then go over, Mr. Sabsay is saying that he has no objection, to Friday morning at 10:00 o'clock.
