R. v. Sipes

2012 BCSC 1965 R. v. Sipes IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Sipes, 2012 BCSC 1965 Date: 20121224 Docket: 66431-2 Registry: Kelowna Regina v. Dale Gordon Sipes, Leslie Podolski, Sheldon Richard O'Donnell Peter Manolakos and Douglas Corey Brownell Pursuant to s. 486.5 of the Criminal Code, R.S.C. 1985, c. C-46, information that could identify certain witnesses may not be published or broadcast in any manner. The content of these Reasons for Judgment complies with the existing publication bans. Before: The Honourable Mr. Justice Smart OTR # 2 and # 3 Reasons for Judgment Counsel for the Crown: D.A. Jardine, P.M. Favell, G.G. Matei, D. McLaughlin, J.M. Robinson, A.S. Burton, C.G. Giles, M.M. Salaysay, S. Nahal Counsel for the Accused Sipes: M.K. Woodall, M.A. Nathanson, G. Ng Counsel for the Accused Podolski: R.C. Claus, M.R. Jetté, G. Docolas Counsel for the Accused O'Donnell: G. Orris, Q.C., C.L. Bauman Counsel for the Accused Manolakos: R.A. (Sandy) Ross, P. Doherty, A. Rinaldis Counsel for the Accused Brownell: C.R. Purves, B.L. Hickford Place and Date of Judgment: Vancouver, B.C. December 24, 2012 [1] There are a number of Off the Record (OTR) applications that arose during the pre-trial stage of the R. v. Sipes trial. Two of them are OTR #2 and OTR #3. They concern questions of informer privilege. As such, they were heard in camera and in the absence of the accused and their counsel. The accused and counsel were aware of the applications but little more because of the need to protect the identity of the putative informants: R. v. Basi, [2009] 3 S.C.R. 389. [2] OTR #3 required me to determine whether certain information is protected by informer privilege. It arose in the context of the Sipes trial because it involved information the Crown would normally disclose to counsel for the accused pursuant to its Stinchcombe obligations. [3] I heard the application many months ago. I concluded that I could not invite participation by the accused in determining any of the legal questions I had to answer because to do so would require providing them with sufficient information to put the questions into context and that information would tend to identify the informant. [4] The information concerns events that occurred after the charges on the indictment and does not pertain directly to those charges. Therefore, it is not information which could possibly be admitted under the innocence at stake exception to informer privilege. [5] I concluded that the information was privileged and should not be disclosed. I have not given reasons for my decision. I cannot publicly do so now without disclosing the informant's identity. I will, however, provide reasons which will be sealed and kept in the court file. [6] OTR #2 was an application by the Crown for directions concerning another matter of informer privilege. Ultimately, it was not a question that needed to be resolved as the concern that motivated the application never materialized. "SMART J."