Comment traiter le privilège de l'enquête en cours eu égard à l'obligation de divulgation

R. v. Chan, 2002 ABQB 287 (CanLII)

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[124]      The applicants in the present case generally acknowledge that certain categories of public interest immunity are recognized at law. These include police investigative techniques, ongoing police investigations and safety of individuals. However, they did suggest that R. v. Mentuck, 2001 SCC 76 (CanLII), [2001] S.C.J. No. 73 (QL) [reported 158 C.C.C. (3d) 449], does not support a public interest in these matters. A similar argument was made before Binder J. in Trang #2 and I adopt his conclusion in this regard, which appears at para. 51 of his decision:

[51] I agree that Mentuck has some indirect bearing on public interest privilege generally, as it indicates the Supreme Court of Canada's view of certain conflicting public interests. However, it must be noted that the issue in Mentuck was whether information already disclosed in court and therefore part of the public record should be kept from the general public by way of publication ban. If it was possible for the Crown to claim privilege with respect to the information in that case, the privilege was waived. The lesson to be taken from Mentuck is that where the Crown pursues trial of charges where sensitive information will be revealed because it is relevant, the public interest in the transparency of the justice system will weigh heavily in the balance in terms of dissemination of the information through the media.Mentuck does not stand for the proposition that the Crown could never succeed in justifying a claim of privilege with respect to the types of information mentioned in that case.

[125]      Binder J. in Trang concluded that the categories of investigative techniques, ongoing investigations and safety of individuals have been accorded common law privilege status, stating at para. 48:

[48] The Crown has asserted privilege status for investigative techniques, ongoing investigations, police intelligence, police internal communications, and information potentially affecting the safety of individuals. Defence counsel submits that in order for public interest privilege to justify non-disclosure this Court must find that the information, if disclosed, would cause damage to either national security or international relations. I cannot accept this position, since investigative techniques, ongoing investigations and safety of individuals have been accorded common law privilege status in the jurisprudence, as well as statutory privilege status in relation to editing of wire-tap applications before being disclosed to the accused: s. 187(4) of the Criminal Code (cited by the Crown in support of its position), and orders denying access to information used to obtain any warrant: s. 487.3.

[126]      He concluded at para. 55:

[55] Investigative techniques, ongoing investigations and safety of individuals are well recognized common law privileges. To distinguish them from communication based privilege and avoid the confusion created by the use of communication privilege terminology, I would categorize them as "qualified privileges". In accordance with the jurisprudence, these privileges are subject to review and balancing by the Court of the public interest served by the privilege against the importance of the information to the right of an accused to make full answer and defence.

[127]      I agree with Mr. Justice Binder that police investigative techniques, ongoing police investigations and safety of individuals are recognized categories of common law privilege or immunity which must be assessed on a case-by-case basis as to whether the public interest in question outweighs the right of the accused to make full answer and defence.