R. v. Basi

R. v. Basi

The trial judge erred in permitting defence counsel to attend the in camera/ex parte hearing because doing so would inevitably expose information tending to identify the confidential informant, breaching informer privilege; informer privilege is a nearly absolute class privilege subject only to the innocence-at-stake exception and is not subject to s.37(5) balancing; the trial judge's decision amounted to a disclosure order under s.37.1 CEA and was immediately appealable; accordingly the Crown's appeal is allowed, the cross-appeal is dismissed, and the matter is remitted to the trial court to determine the claim of informer privilege using procedures that protect the informant's identity...

Citation
2009 SCC 52
Parties
Appellant / Respondent on Cross Appeal: Her Majesty The Queen; Respondent / Appellant on Cross Appeal: Udhe Singh (Dave) Basi; Respondent / Appellant on Cross Appeal: Bobby Singh Virk; Respondent / Appellant on Cross Appeal: Aneal Basi; Intervener: Director of Public Prosecutions of Canada; Intervener: Attorney General of Ontario; Intervener: Canadian Association of Chiefs of Police; Intervener: Criminal Lawyers' Association (Ontario)
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
19 November 2009
Procedural Posture
Criminal Appeal (pre Trial Disclosure Dispute) / Appeal to the Supreme Court of Canada of Interlocutory Disclosure Order Under the Canada Evidence Act; Cross Appeal on Jurisdiction of Court of Appeal
Outcome
Appeal allowed; cross-appeal dismissed; case remitted to trial court for determination of Crown's informer privilege claim in accordance with reasons
Legal Topics
Informer Privilege, Disclosure Obligations, Canada Evidence Act S.37 and S.37.1, Right to Make Full Answer and Defence, Interlocutory Appeals, Presence Rights S.650 Criminal Code
Source Language
English
Criminal Law Evidence Constitutional Law Informer Privilege Disclosure Obligations Canada Evidence Act S.37 and S.37.1 Right to Make Full Answer and Defence Interlocutory Appeals +1 more

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Parties

Her Majesty The Queen

Appellant / Respondent on Cross Appeal

Udhe Singh (Dave) Basi

Respondent / Appellant on Cross Appeal

Bobby Singh Virk

Respondent / Appellant on Cross Appeal

Aneal Basi

Respondent / Appellant on Cross Appeal

Director of Public Prosecutions of Canada

Intervener

Attorney General of Ontario

Intervener

Canadian Association of Chiefs of Police

Intervener

Criminal Lawyers' Association (Ontario)

Intervener

Procedural Posture

Criminal Appeal (pre Trial Disclosure Dispute) / Appeal to the Supreme Court of Canada of Interlocutory Disclosure Order Under the Canada Evidence Act; Cross Appeal on Jurisdiction of Court of Appeal

Legal Issues

  1. 1 Whether trial judge erred in permitting defence counsel to attend in camera/ex parte hearing to establish informer privilege
  2. 2 Whether the trial judge's decision constituted a disclosure order under s.37.1 CEA and thus was immediately appealable to the court of appeal
  3. 3 Whether s.650 Criminal Code entitles accused or counsel to attend s.37 CEA proceedings

Ratio Decidendi

The trial judge erred in permitting defence counsel to attend the in camera/ex parte hearing because doing so would inevitably expose information tending to identify the confidential informant, breaching informer privilege; informer privilege is a nearly absolute class privilege subject only to the innocence-at-stake exception and is not subject to s.37(5) balancing; the trial judge's decision amounted to a disclosure order under s.37.1 CEA and was immediately appealable; accordingly the Crown's appeal is allowed, the cross-appeal is dismissed, and the matter is remitted to the trial court to determine the claim of informer privilege using procedures that protect the informant's identity...

Court Disposition

Appeal allowed; cross-appeal dismissed; case remitted to trial court for determination of Crown's informer privilege claim in accordance with reasons

Orders

  • Allow Crown's appeal
  • Dismiss the respondents' cross-appeal