L'exception de l'innocence en regard du privilège de l'informateur

R. v. Marshall, 2005 CanLII 30051 (ON CA)

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[101] The appellant submits that the trial judge erred in failing to order the disclosure of the identity of the two police informers who provided the police with some information concerning the death of Haldas. At trial, he contended that the informers were material witnesses and relied on the "innocence at stake" exception to the informer privilege as discussed in R. v. Scott, 1990 CanLII 27 (SCC), [1990] 3 S.C.R. 979, [1990] S.C.J. No. 132, 61 C.C.C. (3d) 300 and R. v. Leipert, 1997 CanLII 367 (SCC), [1997] 1 S.C.R. 281, [1997] S.C.J. No. 14, 112 C.C.C. (3d) 385. [page109]

[102] I agree with the Crown that the trial judge correctly found that the appellant had not shown that the "innocence at stake" qualification to the informer privilege operated on the facts of this case. Subsequent to the trial judge's ruling, the Supreme Court of Canada developed evidentiary and procedural standards in respect to the determination of whether informer privilege or solicitor-client privilege must yield to the "innocence at stake" exception in a given case: R. v. McClure, 2001 SCC 14 (CanLII), [2001] 1 S.C.R. 445, [2001] S.C.J. No. 13, 151 C.C.C. (3d) 321; R. v. Brown, 2002 SCC 32 (CanLII), [2002] 2 S.C.R. 185, [2002] S.C.J. No. 35, 162 C.C.C. (3d) 257. The standards established by the Supreme Court include the threshold determination of whether the information sought is not available from any other source and whether the accused is otherwise unable to raise a reasonable doubt as to guilt. If these threshold conditions are met, then the two-part "innocence at stake test" is to be applied: see McClure,[cf 2] supra, at paras. 48-51. The first part of the test requires that the accused seeking production must provide an evidentiary basis to conclude that the informer possesses information that could raise a reasonable doubt as to the accused's guilt. The second part provides that if such an evidentiary basis exists, the trial judge should examine the available information to determine whether, in fact, it is likely to raise a reasonable doubt.

[103] In my view, the Crown is correct in its submission that the appellant failed to meet the threshold requirement that disclosure of the informers' identities was the only way to raise a reasonable doubt as to his guilt. I would agree with the trial judge that the information disclosed by the informers did not provide a basis for concluding that they were present at the murder, nor that they would be in a position to exculpate the accused.