Bouchard, Gagné, Cotnam
Appeal from a judgment of the Superior Court dismissing an application for a declaratory judgment. Dismissed.
The appellant is a syndic with the Barreau du Québec. Following a request filed by the respondent, the Director of Criminal and Penal Prosecutions, to investigate the conduct of a lawyer who had implied that one of his clients was an informant, the appellant asked the DCPP to send him information. The respondent refused to provide the information, arguing police informer privilege, which led to the appellant’s application for a declaratory judgment to resolve this difficulty. The trial judge dismissed the application to have the police informer privilege declared inapplicable in the context of the exercise of investigative powers invested in the syndic under the Professional Code (CQLR, c. C-26).
It is necessary to determine whether, in the context of a disciplinary investigation, the syndic may gain access to information protected by police informer privilege. This common law principle has long been rooted in Canadian law and is quasi-absolute in nature. Its scope is extremely broad. The prohibition on disclosure includes not only the name of the informant, but also any information that might tend to identify him or her. Disclosing privileged information may have very serious consequences not only for the informants and their family and friends, but also for the administration of justice in criminal matters. According to the Supreme Court, which has on many occasions defined and confirmed the specifics of police informer privilege, it is a public order rule removed from any discretionary power, except where the accused requires the information to prove his or her innocence.
Relying on R. v. Brassington (S.C. Can., 2018-07-20), 2018 SCC 37, SOQUIJ AZ-51513417, 2018EXP-2014,  2 S.C.R. 616, the appellant argues that he should be part of the “circle of privilege” that includes the informant, the police, the Crown, and the courts, because of his oath of discretion and the measures he can take to ensure the protection of the informant’s identity. It should be recalled that the issue in Brassington was whether police officers, charged with various offences, could disclose information to their counsel that might reveal the identity of anonymous informants. The Supreme Court found that their inclusion in the “circle of privilege” entailed some risks that could not be disregarded. It should be understood here, that even though defence counsel are officers of the court bound by many ethical obligations, it is impossible to completely exclude the risk, small though it may be, that a seemingly inconsequential indicator could be enough to identify the informant. The same reasoning may be applied to the syndic. To include the syndic in the “circle of privilege” because he or she is trustworthy boils down to a case-by-case approach. The Supreme Court expressly prohibited this type of contextual weighing exercise. The judge did not err in dismissing the appellant’s application for a declaratory judgment.
Text of the decision: Http://citoyens.soquij.qc.ca