Bich, Vauclair, Healy
Appeal from conviction. Allowed; stay of proceedings ordered.
The appellant became a police informant and was subsequently charged and convicted for participating in the offence that was the subject of file X, which offence was revealed by the appellant to the police. At trial, the appellant argued that the charge was an abuse of process, which the trial judge did not accept. On appeal, the appellant argued that the trial judge’s conclusion was wrong.
There is no trace of this trial. The manner chosen to proceed in this case was exaggerated and contrary to the fundamental principles governing our legal system. Such secretive procedure is contrary to modern criminal law, which is respectful of the constitutional rights of not only the accused, but also the media. It is also inconsistent with the values of a liberal democracy.
The rules surrounding police informants arise from common law, and there is nothing there to set aside the obligation to inform when entering into an agreement with an informant. R. v. Named Person B (S.C. Can., 2013-02-22), 2013 SCC 9, SOQUIJ AZ-50939271, 2013EXP-665, J.E. 2013-362,  1 S.C.R. 405, illustrates that the State has an obligation to inform and that ambiguities may benefit the informant. Moreover, the renunciation of a constitutional right will be valid only if the prosecution shows that this renunciation was informed and expressed knowingly. By becoming a police informant, the appellant renounced the right to remain silent, the right to counsel, the right to a public trial, and the right to make full answer and defence. The police officers never informed the appellant of the right to remain silent or suggested that the appellant consult counsel.
In the circumstances, it was reasonable for the appellant to think, from contact with the officers, that the offence in file X could be disclosed without the appellant being charged because the appellant had to tell the truth, that the investigation did not concern the appellant, and that nothing the appellant said could be held against the appellant. The conduct of the police officers throughout their relationship with the appellant was consistent with this understanding. Police officer A was not clear on the temporal scope of the appellant’s criminal involvement and gave no explanation likely to be understood by a layperson concerning a police informant’s lack of immunity. That information was crucial to the appellant’s decision to reveal file X, which was completely unknown to the police before then. For his part, police officer D knew that immunity could be granted only by the prosecution, but he never explained this to the appellant. A reasonable person would have thought that he or she would not be prosecuted for past crimes. The trial judge’s conclusion to the contrary on this issue is unreasonable. It leads to an injustice and gives the impression that casualness is tolerated in the police informant recruitment process. This undermines the objective of encouraging persons to provide information to the police and the integrity of the legal process. The State cannot benefit from the ambiguities of its agreement with the informant by then using it against that informant. The fact that charges were laid in the circumstances is appalling. The fairness of the trial was compromised by the limits imposed on the right to make full answer and defence. Such State conduct risks undermining the integrity of the legal process.
Text of the decision: http://citoyens.soquij.qc.ca