REDACTED Court File No. 33727 (On Appeal from the Court of Appeal of Alberta) Between:

ROSS BARROS Appellant

-and-

HER MAJESTY THE QUEEN Respondent

FACTUM OF THE APPELLANT (ROSS BARROS, APPELLANT) (Pursuant to Rule 42 of the Rules of the Supreme Court of Canada) Restriction on Publication: By Court Order, information that may identify the person described in this judgment as the informer may not be published, broadcast, or transmitted in any manner. There is also a ban on publishing the contents of the application for the publication ban or the evidence, information or submissions at the hearing ofthe application. See the Criminal Code, s. 486.5

Hersh Wolch, Q.C. Robert E. Houston, a.c. Wolch, Hursh, deWit, Silverberg & Watts Burke Robertson LLP Suite 1500 70 Gloucester Street 633 - 6 Avenue S.w. Ottawa, Ontario K2P OA2 , Alberta T2P 2Y5

Counsel for the Appellant Ottawa Agents Ph: 403-265-6500 Ph: 613-236-9665 Fax: 403-263-1111 Fax: 613-235-4430

J. C. Robb, a.c. Henry S. Brown, a.c. Ministry of the Attorney of Alberta Gowling, Strathy & Henderson 9833 - 109 Street, NW. 2600 - 160 Elgin Street , Alberta T5K 2E8 Ottawa, Ontario K1P 1C3

Counsel for the Respondent Ottawa Agents Ph: 780-422-5402 Ph: (613)233-1781 Fax: 780-422-1106 Fax: (613)788-3433 JAMES C. ROBB, Q.C. HENRY S. BROWN, Q.C. MINISTRY OF THE ATTORNEY GOWLINGS GENERAL OF ALBERTA 2600 - 160 Elgin Street Appeals and Criminal Law Branch Ottawa, Ontario Bowker Bldg. 3RD Fir., 9833 - 109 Street K1P 1C3 . Edmonton, Alberta T5K 2E8 Phone: (613) 233-1781 Telephone: (780) 422-5402 Fax: (613) 788-3433 Fax: (780) 422-1106 [email protected] Counsel for the Respondent Agent for Counsel for the Respondent INDEX

PART I STATEMENT OF FACTS ...... 1 Accused's Ability to Defend One's Self Severely Restricted...... 1 Defence Becomes Agent of the State...... : ...... 1 Brief Factual Background...... 1

PART II STATEMENT OF ISSUE ...... 8

PART III STATEMENT OF ARGUMENT...... 8 Informer Privilege...... 8 Importance of the Privilege...... 8 Privilege Not Imposed on Defence Counsel...... 9 An Accused Must be able to Challenge the Crown's Case .. '" ...... 10 There is an Urgent Need to Thoroughly Investigate the Crown' Case. . 12 The Crown Accepts What is Provided by the Police...... 13 A Theoretical Possibility of Wrongful Conviction is Unacceptable ..... 14 Accused Can and Should Investigate Source...... 14 Courts Should Use Caution in Relying Upon Informants...... 17 The Issue of Appellate Jurisdiction...... 17

PART IV SUBMISSIONS CONCERNING COSTS ...... 23

PART V ORDERS REQUESTED ...... 23

PART V TABLE OF AUTHORITIES ...... 24

PART VII STATUTORY PROVISIONS ...... 26 Criminal Code of Canada, R.S.C. 1985, c. C-46, ss. 139(2),346(1.1 )(b) PART I STATEMENT OF FACTS

Accused's Ability to Defend One's Self Severely Restricted

1. This Appeal raises the issue of the accused's right to defend one's self against the accusations of the State. The majority in the Court below severely restrict the ability of accused persons to make full answer and defence. The Court of Appeal below has declared illegal a basic tenet of criminal law - the right to test the prosecution's case.

Defence Becomes Agent of the State

2. If the decision of the Court of Appeal below remains the law, the defence will become an agent of the state, not a fierce advocate for his client. Those resounding words of British barrister, Lord Henry Brougham, "An advocate, in the discharge of his duty, knows but one person in all the world, and that person is his client ...." will be meaningless and will harm the relationship of trust which must exist between defence counsel and an accused. Ref: R. v. Neil, [2002]3 S.C.R. 631, 2002 SCC 70, at para. 12 [TAB M]

Brief factual background

3. The factual findings of the majority of the Court of Appeal are distinctly at odds from the factual findings of the trial Judge. Berger, JA, in dissent finds that on the facts as reasonably found by the trial Judge, her verdict is unassailable. Ref: Reasons for Judgment of the Court of Appeal, at para. 131 [Record, p.58]

4. The dissent of Berger, J.A., contains a logical, succinct statement of the facts and law as it should be in this case and it is the submission of the Appellant that his decision be adopted as the correct statement of law.

5. . Irfan Qureshi was arrested for drug and weapons charges which resulted from a search warrant executed on his home. The main investigator and source handler was 2

Detective Kevin Brezinski. Mr. Qureshi retained Mr. Tarrabain, Q.C. as defence counsel. Mr. Tarrabain retained Mr. Ross Barros, the Appellant, who at that time was a Private Investigator to assist him in defending Mr. Qureshi Ref: Reasons of the Trial Judge, p. 8:33-46. [Record]

7. Mr. Barros was a police officer for many years as well as a Senior Investigator in the Drug Unit of the Edmonton Police Services. He was, until these events, a friend of De!. Brezinski. He left the force and became a licensed Private Investigator, referred as going "to the dark side" by Del. Brezinski. Ref: Memorandum of Decision of Trial Judge dated June 25,2006, para. 7 [Supplemental Record] and Trial Transcript, p. 82:21-36 [Suppl. Record].

8. This legal quagmire began when, after being arrested by Del. Brezinski, Qureshi and Det. Brezinski came to an agreement whereby Det. Brezinski would not oppose bail if Qureshi assisted the pOlice. It was referred to in proceedings as 'guns for bail'. Det. Brezinski refused to testify as to what the actual weapons were he was seeking to obtain from Mr. Qureshi and the trial Judge did not grant an application, through the principle of "innocence at stake", by the Appellant asking her to compel the witneSS to answer. 3

Ref: Memorandum of Decision dated September 7,2007, para. 3 [Supplemental Record]; Transcript p. 137:27·139:26 [Suppl. Record] and Reasons ofTrial Judge, p. 9:42·918: 13 [Record]

9. To obtain Mr. Qureshi's cooperation in obtaining the weapons, Det. Brezinski threatened Mr. Qureshi with charging his father and brother. When Mr. Qureshi indicated that he would get Det. Brezinski some weapons, he became a 'source', enabling Det. Brezinski to avoid testifying about these arrangements at trial. Ref: Trial Transcript, p. 357:21·358:39 [Suppl. Record]

10. When questioned whether this was not extortion, Det. Brezinski testified that it was "just normal work". This 'normal' threatening police work is how some pOlice officers recruit their informants, sources, and agents. It is this fact which demands that, for the protection of all , the defence have the appropriate opportunity to consider the motives, actions and reliability of police sources. Ref: Trial Transcript, p. 358:21·26 [Suppl. Record]

11. Det. Brezinski recommended bail, however, the Justice of the Peace declined to accede to Det. Brezinski's recommendations as presented by a police officer for the Crown. Following this application, the Crown reversed its position and asked for a denial of bail. Ref: Reasons of the Trial Judge, p. 9:44·918:2 [Record]

12. The charges against Mr. Barros arise out of a conversation between him and Det. Brezinski on a day when Mr. Qureshi's bail application-was before the Court of Queen's Bench. A second police officer, Det. Krewenchuk, was, at Mr. Barros' request, present as a witness to the conversation between Mr. Barros and Det. Brezinski. Ref: Trial Transcript, p. 73:5·17 [Supplemental Record] 4

13. Mr. Barros spoke to Det. Brezinski in the very early morning and arranged a meeting for the afternoon. The meeting was quickly rearranged by Mr. Barros in order to precede the pending bail application. The bail application was a review in the Court of Queen's Bench of the previous refusal of the consent bail. Ref: Trial Transcript, p. 57:13-58:43; 61 :20-36; 64:8-66:21 & 65:9-13 [Suppl Record]

14. During the rearrangement of the scheduled meeting, Mr. Barros provided Det. Brezinski with a 'heads up' that he also had discovered the identity of the Det. Brezinski's source as being Mirza Kassam. Det. Brezinski advised Mr. Barros that his guess was incorrect. Ref: Trial Transcript, p. 64:45-65:2 [Suppl. Record]

15. During the brief meeting at the golf course, the only threat made was Det. Brezkinski threatening to report Mr. Tarrabain, Q.C. to the Law Society of Alberta. Ref: Trial Transcript, p. 75:40-76:44 [Suppl. Record]

16. In fact, Det. Brezinski testified that he wanted to know what Mr. Barros knew. "Well, that's something I would like to know, correct. If he had information that he knew my source was, I would appreciate that he would come forward and tell me, yes." Ref: Trial Transcript, p. 391: 13-16 [Suppl. Record]

17. Det. Brezinski also testified that attempting to and identifying a confidential source is not a crime; anybody can try to find out who fingered him. Ref: Trial Transcript, p. 51 :11-52:40; 81 :3-8 [Suppl. Record] and Memorandum of Decision dated June 25, 2006 at para. 17 [Supplemental Record]

18. Mr. Barros made no request of Det. Brezinski to drop the charges against Mr. Qureshi, something Det. Brezinski could not do in any event. Det. Krewenchuk, who was invited by Mr. Barros to attend the meeting with Mr. Barros and Det. Brezinski, 5

testified that Mr. Barros unconditionally told them at the meeting that he was not going to identify the source to anyone. Mr. Barros did not request the charges be dropped and he positively indicated that he was not telling anyone. Ref: Trial Transcript, p. 483:23-484:4 [Suppl. Record] and Reasons of Trial Judge p. 10:14-19; 16:32-39; 17:10-11. [Record]

19. All that Det. Brezinski had was an impression that Mr. Barros wanted the charges dropped. He believed that was the intention, but he asked no clarifying questions. Ref: Trial Transcript, p. 374:37-377:16 [Suppl. Record] and Reasons ofTrial Judge, p. 10:17-19 [Record]

20. There was mention in the meeting of guns to be returned but Det. Brezinski testified that he interpreted this as another attempt to obtain a stay, even though he agreed that to drop serious charges in exchange for some guns was nonsense and that Mr. Barros would know that. "He is charged with other drugs and handguns. A JP won't even give him bail by consent. And for some guns you're going to drop the charges? That's nonsense. It is nonsense. I agree with you."

Ref: Memorandum of Decision dated September 7, 2007 at para. 23 [Suppl. Record] Trial transcript, p. 142:1-143:42 [Suppl. Record]

21. The Trial Judge, having the benefit of hearing and observing all of the witnesses called at trial, found Mr. Barros, through a video-taped, cautioned statement, and Det. Brezinski to be credible and reliable witnesses and found Mirza Kassam to be a poor and unreliable witness. She· clearly stated that she was of the view that Mr. Kassam's evidence could not be relied upon as he had a poor memory due to years of drug abuse and the passage of time between the incident and the trial. Ref: Reasons of Trial Judge, p. 17:16-926:4; 19:9-22; 20: 27-28IRecord]

22. The Trial Judge found that there were no threats made by Mr. Barros to either Det. Brezinski or Mr. Kassam. Det. Brezinski testified to that he had the impression Mr. 6

Barros wanted the charges withdrawn, however, he was not threatened. Mr. Kassam testified that his meeting with Mr. Barros was 'chit chat' after being immediately being accused of being the informer. Mr. Kassam indicated that it was possible that Mr. Barros told him he was going to give his information to the police and that Mr. Kassam should get his own lawyer. Ref: Reasons of Trial Judge, p. 15: 33-36; 16: 32-39; 20:4-14; 20:39-41 [Record]

23. The Court of Appeal below did not take into account in assessing Mr. Kassam's evidence, as the trial Judge did, that Mr. Kassam had had months of conversations with Det. Brezinski and the Crown about what Mr. Barros had said and done and what the implications of those discussions were from their point of view and, given Mr. Kassam's . weak brain function, it was impossible to tell in his testimony what he actually experienced, what he had just absorbed from others and what he just guessed at.

24. Contrary to the evidence taken at trial, the Court of Appeal below found that Mr. Barros arranged a meeting with Det. Brezinski "for the purpose of telling him that he had discovered" the identity of the informer, his expectation being that the Crown would withdraw the charges. I,n fact, it was Mr. Barros who invited Det. Krewenchuk to witness the meeting, NOT Det. Brezinski. Ref: Reasons for Judgment of the Court of Appeal, para. 9 [Record, p. 27] and Reasons ofTrial Judge, p. 15:43-45 [Record]

25. The Trial Judge specifically found that the purpose of the meeting was to secure Mr. Qureshi's release on bail and that the Crown withdrawing the charge may have been a consequence of Mr. Barros' disclosure, but it was not his objective in the meeting and, therefore, the Crown did not prove an intent to extort. Ref: Trial Transcript, p. 73:5-74:35 [Suppl. Record]

26. At the close of the Crown's case and, after the Appellant's motion for disclosure based on the Innocence at Stake exception was rejected, the Trial Judge granted a 7

Non-suit motion on the first count of the Indictment and at the close of the trial dismissed counts two (2) and three (3). Ref: Memorandum of Decision dated June 25,2007, paras. 2-3 [Supplementary Record] and Reasons of Trial Judge, p. 21 :7-9 [Record]

27. In all of her decisions, the Trial Judge summarizes her findings of fact very clearly. The factual findings of the Trial Judge were all reasonable and consistent with the evidence. Ref: Memorandum of Decision dated June 25, 2007 [Supplementary Record], Memorandum of Decision dated September 7,2007 [Supplementary Record] and Reasons of Trial Judge commencing at page 6 of the Record.

28. A considerable part of the Appellant's appeal to the Court of Appeal below was a dispute with inferences drawn by the Trial Judge. The standard of review in assessing inferences is a deferential standard of "palpable and overriding error". However, the Court of Appeal below showed no deference to a Trial Judge who acquitted, and changed the facts to accord with their desired outcome .. 8

PART" STATEMENT OF ISSUE

29. Whether it is an error of law to determine that the scqpe of protection afforded to alleged confidential poi ice informers extends to preclude otherwise lawful investigative steps by the defence.

30. Whether it is an error of Jaw to transform the prohibition against revelation of the identity of an alleged informer by the State to a prohibition against discovery by anyone.

31. Whether it is an error of law to foreclose legitimate investigation by defence counsel, or agent, to ascertain whether an alleged informer is in fact an agent of the state, a material witness, a fictional source fabricated for illegal purposes or whether there is evidence of a Charier breach.

32. Whether it is an error of law for a Court of Appeal to substitute its view of the facts and, thereby, to overturn findings of fact made by a Trial Judge in order to find a right of appeal for the Attorney General.

PART III STATEMENT OF ARGUMENT

Informer Privifege Importance of the Privilege

33. The Appellant Is not suggesting, and has never suggested, that informer privilege is not an important privilege in the criminal justice system. The privilege developed over a period of time as a result of legitimate concerns and a strong need. Ref: R. v. Leipert, [1997]1 S.C.R. 281 at para. 9 [Tab K] 9

34. However, informer privilege is a duty upon the police, the Crown, the Courts and even the informer, it is not, and cannot be, a bar to the defence right to investigate and make full answer and defence. Defence counsel's duty is to their client, the accused, and their duty is to prepare a full and complete defence for their client. Oftentimes, that duty will involve a significant amount of investigation to ensure that all of the facts are available to the defence and not only the facts as reported by police officers, who are often acting with some amount of tunnel-vision. Ref: Bisaillon v. Keable, [1983]2 S.C.R. 60 at p. 25 (Qll [Tab AJ

Privilege Not Imposed on Defence Counsel

35. There cannot be a duty upon the defence NOT TO INVESTIGATE. To uphold such law as has been pronounced by the Court of Appeal below would be to dispose of fundamental tenets of the Canadian justice 'system, that of being innocent until proven guilty beyond a reasonable doubt and our adversarial process.

36. A rule preventing the defence from attempting to learn and gather information is illogical given the innocence at stake exception. to informer privilege. If it were a criminal act for the defence to attempt to learn about the source, there would be no innocence at stake exception. This exception specifically requires the defence to produce information about the source which would lead the Court to conclude that further disclosure is required to protect the innocent.

37. Because this exception exists, the Court of Appeal's decision cannot stand.

38. This Honourable Court in numerous previous decisions has clearly provided the history and development of the informer privilege. Its origins stem from a need for information from the public in solving crimes. Information which the police are generally unable to obtain on their own and which must come from the people who were witnesses to the crime or receive information about it. 10

39. To encourage people to come forward with information which may solve crimes without fear of the consequences, the police must be able to promise anonymity and that promise must be kept by the Crown and the Courts. Ref: Bisaillon v. Keable, supra p. 22,23 - [Tab AJ & R. v. Scott [1990], 3 S.C.R. 979 - para. 31, 32 [Tab N]

40. The duty to protect the informer lies with the State. There is a duty on the State not to divulge this information, however, there is no corresponding duty upon the accused or the defence. If a defence investigation finds an Informant which the State has not revealed, there is no criminal action and no breach of that privilege.

41. In Leipert, McLachlin J., as she then was, prepared a detailed explanation of the law regarding Informer Privilege. She confirmed that the privilege belongs to the Crown who cannot waive the privilege without the informer's consent. There is a need for the State to protect informer privilege in order to solve crime as informers provide valuable, . otherwise unattainable, information. Ref: R. v. Leipert, supra [Tab KJ

An Accused Must be able to Challenge the Crown's Case

42. To argue that an accused has the 'right' to try to obtain this information is not inconsistent with the pronouncements of Leipert as suggested by the Court of Appeal below. An accused has the right to make full answer and defence and, therefore, the right to investigate to obtain this information. The only bar that Leipert imposes to that right, is that the information cannot come from the state. Ref: Reasons for Judgment of the Court of Appeal, para. 41 [Record, p. 35J

43. There has never been any suggestion by any court in this land that it is illegal for the accused to attempt to figure out who the informant is and in what capacity they actually acted. 11

44. The Court of Appeal below parsed a senterice from Bisaillon, to suggest that it is illegal to present evidence of facts which cannot be disclosed in the public interest. However, the Court in Bisaillon was determining an issue of release of an informant's identity by a public official, not an investigation by the defence. There is no indication in that paragraph who cannot present this secondary evidence and there is no citation for this statement in the paragraph. It certainly cannot be said that the Supreme Court of Canada was making a declaration in this paragraph that the defence could not present evidence that it had discovered regarding any relevant area of defence. Ref: Reasons for Judgment of the Court of Appeal, para. 43 [Record, p. 35] Bisaillon v. Keable, supra, p. 25 QL print [Tab AJ

45. In addition, civil law rules and conduct regarding solicitor-client privilege have no analogy to full answer and defence in a criminal matter. Of course, the State would not be entitled to use solicitor-client privileged information it discovered. The rules are directed at the State in criminal matters. Civil lawyers who come across solicitor-client privileged information are not dealing with individual's liberty and criminal stigma. This Honourable Court has often distinguished between civil and criminal liability justifying a relaxing of Charter rights. Most recently, in the Chatterjee decision, the State's ability to take the property of those merely suspected of engaging in criminal activity, without evidence of the same, or in breach of Charter rights, was deemed to withstand Charter scrutiny as the civil forfeiture Acts of the Provinces deal with property and not liberty rights. Ref: Chatterjee v. Ontario (Attorney General), [2009J 1 S.C.R. 624,2009 SCC 19at para. 46 & 48. [Tab B]

46. As such, the Court of Appeal's analogy to those decisions as support that there is no right of an accused to investigate the source, is flawed. The Courts should not prohibit an accused from 'figuring out' who the source is and informants are or should be aware of that when providing information. An informant is, and can only be, promised that the State will not provide any information to reveal his identity. 12

47. If an accused commits an illegal act intending to harm the informant after obtaining that information, then that is the crime, not the obtaining of the information.

There is an Urgent Need to Thoroughly Investigate the Crown' Case

48. Many search warrants are issued in part on information from a 'source'. The source in reality could be: a) fictitious, b) a police agent, c) a police officer, or d) a police informant who could be i) honest, or ii) dishonest.

49. There have been occasions where the actual source has been the police officer's imagination, others actively participate'in the investigation and become legitimate witnesses, rather than confidential informants. It is not unheard of for the source to set up or plant illegal items and then call in a tip in order to benefit themselves. Ref: Sophonow Inquiry, Cory, J. (http://www.gov.mb.ca/justice/publications/sophonow/index.html?!) [Tab P]

50. The knowledge as to the source's motivation, actual knowledge and position are important to the defence to ensure there is proper investigation. On occasion, investigation reveals that the information provided in the tip is impossible in the circumstances.

51. It is the duty of defence counsel to vigorously defend their client. While that vigorous defence clearly precludes illegal actions, investigation into the sources of the information obtained by the police and an interviewing of all potential witnesses, is not illegal nor should it be illegal. 13

52. The conclusions of the majority that "the mere fact that it is not unknown for Informers to be police agents, to give unreliable information, to plant evidence, or to have oblique motives does not warrant seeking out the identity of informers as a matter of routine", is beyond comprehension. An accused person must be allowed to investigate the circumstances in which the informer provided information to the State. The Canadian justice system should not encourage individuals to incriminate others based on falsified evidence while also protecting those same individuals by limiting the ability of the defence to investigate those allegations. Ref: Reasons for Judgment of the Court of Appeal, para. 56 [Record, Tab J

53. Would the position remain the same if a disgruntled butler planted something in a Judge's desk and then called the police as a confidential informant? Would that Judge not go to the ends of the earth to find out who planted that evidence in their desk?

The Crown Accepts What is Provided by the Police

54. The Crown does not question the motives of the informer or the police who indicate they have an informer. The Crown accepts what the police provide them and presents it to the Court as the unassailable truth. If defendants are not permitted to investigate allegations brought against them, then who will keep the balance between the powerful and the powerless? .

55. Generally, the Crown is the party with the most resources in a criminal prosecution. An accused has to rely upon what is provided by the Crown from the police and has limited investigatory resources. The Crown does not, and will not, investigate the source utilized by the police and generally will not question an officer with respect to their source, unless there is something obvious which causes them confusion. 14

56. There may be many reasons why an accused will be suspicious of the motives or involvement of an informer and the only method to confirm or deny those suspicions is by his own investigation. The Crown and the courts will not entertain an application for further investigation and disclosure unless the accused has some evidence to justify his suspicions.

57. In the case at bar, Det. Brezinski was surprised to learn that police officers' cell phone records were available on the internet, even though Mr. Barros had advised Det. Brezinski at the meeting and had also warned the police departrnent that he had obtained such a record prior to the Preliminary Hearing. Mr. Barros' dilemma in discussing the matter was how to keep those records out of the wrong hands when the police department denied such accessibility. Ref: Trial Trariscript, p. 78:39-81 :27 [Supplementary Record]

A Theoretical Possibility of Wrongful Conviction is Unacceptable

58. Quite erroneously, the Court of Appeal stated that, "the theoretical possibility, present in every case, of a wrongful conviction is not enough [to allow a right to make full answer and defence]". The Court of Appeal below has lost sight of the very important adage: better a hundred guilty men go free than one innocent man be convicted. The Canadian justice system protects ill!.. Canadians, not just those charged (rightly .ill&wrongly) with criminal offences. Ref: Reasons for Judgment of the Court of Appeal, para. 54. [Record, p. 38] Named Person v. Vancouver Sun, [2007] 3 S.CR 253 [Tab E]

Accused Can and Should Investigate Source

59. It was not the Appellant's position before the Court of Appeal that informer privilege exists only inside the courtroom. It was the position that the defence is prohibited from asking questions which would reveal the informant inside the courtroom. 15

Outside the courtroom, in other words, when preparing for trial, the defence may make such inquiries as they can to determine what defences are available.

60. In the case at bar, there was no intention to publish the information obtained, to reveal it to defence counselor to the client. The information was brought directly to the police as the source was told it would be. The source's name was not provided to the defence until the Crown disclosed it, both in documents and in an open courtroom. This is completely distinguishable from the media's application to publish information about an informant In Named Person. Ref: Reasons for Judgment of the Court of Appeal, para. 54 [Record, p. 38]

61. The decision of this Honourable Court is Basi, does not stand for the proposition that an accused cannot independently identify the informer. It stands for the proposition that the Court must take all precautions to ensure that the State, including the Court, does not inadvertently breach the privilege by revealing the identity of the informant. Ref: Reasons for Judgment of the Court of Appeal, para. 58 [Record, p. 14]; R. v. Basi, 2009 SCC 52 [TAS G]

62. It is noteworthy that the Crown Prosecutors' Policy Manual in Alberta, Confidential Police Informants (Privilege) chapter, mentions nothing about a bar to defence attempts to obtain information about police informants and, in fact, indicates that the police need to provide as much information as possible to the Crown in order that the Crown can "fully prepare a response to any attempt to elicit information regarding an informer". Ref: Crown Prosecutors' Policy Manual in Alberta, Confidential Police Informants (Privilege) chapter, under the heading, 'Police Duty' (http://justice.alberta.ca/programs_services/criminal_pros/Publications%20Librar y%20%20Criminal%20Prosecution~/CrownProsecutors'PolicyManual.aspX/DispF orm.aspx?ID=3) [fab C] 16

63. As is seen in decisions such as Hebert and Liew, trickery in obtaining statements from an accused is acceptable as a police tactic, how can an accused be estopped from using their best efforts to investigate their defence? Ref: R. v. Hebert, [1990J 2 S.C.R. 151 [Tab IJ & R. v. Liew, [1999J 3 S.C.R. 227 [Tab LJ

64. There is no authority for the proposition that it is unlawful for an individual to try to determine who has accused them, correctly or falsely, of committing a criminal offence.· The law has always been clear that as long as you employ lawful means, efforts to identify your adversary may be undertaken without sanction.

65. The findings of Sanderman, J. in the related matter of Tarrabain O'Byrne & Company, and of all of the Judges below the Court of Appeal, confirm this to be true. "The Applicant suggests that Constable Moore failed to establish that any offence known to law had been committed by Mr. Barros or anyone else. Clearly, it is not an offence to determine or to know who an informant is. Seeking or possessing this information would not give rise to a criminal offence." Ref: R. v. Tarrabain, O'Byrne & Company, [2006J 54 Alta. L.R. (4th) 357; 2006 ABQB 14 at para. 45 [Tab 0]

66. The police view of the legality of investigating the source was shaped by the law. The law in this matter was clear at the time, and one decision had confirmed the police view that it was not illegal to investigate by the time they testified at trial. Ref: R. v. Tarrabain, O'Byrne & Company, supra, [Tab OJ

67. The Court of Appeal below has now invented a law which imposes a duty on defence counsel to protect the identity of informers which is not only impractical for defence counsel, but impossible to enforce on an unrepresented accused. This "invention" undermiries the duty of zealous representation as well as effectively makes defence counsel implicit in the State's prosecution of an accused individual, who is to be presumed innocent until proven guilty beyond a reasonable doubt. 17

Courts Should Use Caution in Relying Upon Informants

68. The Leipert decision is from 1997. Although in the Appellant's opinion it remains good law, the Court of Appeal's failure to accept the Trial Judge's finding that, in recent years the courts have become cautious about the use of informants, is misplaced. The Driskell Inquiry is from 2004, the Sophonow Inquiry is from 2001, Truscott is from 2007, Dix is from 2002, Morin is from 1998, Dalton, Parkens, and Drunken is from 2006, and Milgaard is from 2005, to name a few. To say that the judicial landscape with respect to informants and police investigation in general has not changed since Leipert is folly. Ref: Reasons for Judgment of the Court of Appeal, para. 65 [Record, p. 41]

69. With respect to the Court of Appeal below, the Appellant has never argued that an accused has an unrestrained right to attempt to identify the informer. The right is not unrestrained. It is severely restrained by available resources, financial resources, lack of information, lack of cooperation and the parameters of the law with respect to the means to locate information. Ref: Reasons for Judgment of the Court of Appeal, para. 61 [Record, p. 40]

The Issue of Appellate Jurisdiction

70. The Court of Appeal below erred in law in interfering with the acquittal of the Trial Judge by allowing a Crown appeal on issues of fact and mixed fact and law.

71. As a result, the Court of Appeal below exceeded their jurisdiction by overturning the Applicant's acquittals by considering questions of fact and mixed fact and law rather than a strict question of law alone.

72. In R. v. Graveline, the Court reviewed the law regarding Crown appeals from acquittal. At paragraphs 13 and 14 the Court stated: 18

13 ... Section 676(1 lea) of the Criminal Code ... provides that the Attorney General may appeal to the Court of Appeal "against a judgment or verdict of acquittal ... on any ground of appeal that involves a question of law alone".

14 It has long been established, however, that an appeal by the Attorney General cannot succeed on an abstract or purely hypothetical possibility that the accused would have been convicted but for the error of law. Something more must be shown. It is the duty of th~ Crown in order to obtain a new trial to satisfy the appellate court that the error (or errors) of the trial judge might reasonably be thought, in the concrete reality of the case at hand, to have had a material bearing on the acquittal. The Attorney General is not required, however, to persuade us that the verdict would necessarily have been different.

Ref: R. v. Graveline, [2006]1 S.C.R. 609 [TAB H]

73. The dissent of Berger JA is correct in stating that the majority decision of the Court of Appeal substituted its view of the factual underpinnings for that of the Trial Judge. Ref: Reasons for Judgment of the Court of Appeal, para. 116 [Record, p. 54]

74. In order to overturn the decision of the Trial Judge, the majority of the Court of Appeal below had to change the Trial Judge's finding of fact as her findings, which enjoyed ample support in the record, ably supported her decision to acquit.

75. The Trial Judge's conclusions of Mr. Barros' intention was supported by the record and not a factually based error so egregious as to undermine the whole verdict, and so amount to an error of law. Absent such an error, the Crown was prohibited from appealing on factual grounds.

76. The Court of Appeal speculated liberally in its decision to overturn the acquittals, appearing at times to possess the ability to read minds. For example: "but it must have been apparent that a cloud of suspicion ... "; 19

"This would have created a palpable atmosphere of danger at the meeting and in the mind of the informer."; "whether he was bluffing .,. would have been impossible for the individual to know."; "... his expectation being that Sgt. Brezinski and the Crown would withdraw the charges ... "; and " ... by using methods that can only have had an intimidating effect...". Ref: Reasons for Judgment of the Court of Appeal, paras. 6, 7, 8, 9, 67 [Record, p. 26, 27 & 421

77. There was no evidence to support these speculations, they were mere interpretations directed to a desired result.

78. In addition, the Court of Appeal below stated that "at later meetings, the Respondent intended to tell the assembled associates that he knew who the informer was." There was no evidence of this at trial. Ref: Reasons for Judgment of the Court of Appeal, para. 7 [Record, p. 27]

79. The majority decision erred by finding that "the Respondent's message was that if Det. Brezinski did not arrange to have the charges dropped, the informer's name might become public ... ", while Berger, JA quoted the accurate trial evidence which was that Mr. Barros specifically said he was not going to reveal the identity of the informer. Ref: Reasons for Judgment of the Court of Appeal, paras. 86, 135 [Record, p. 47,59]

80. The majority also speculated that the only way that anybody would get hurt would be if Mr. Barros disclosed the name, however, they forget that there was evidence, accepted by the Trial Judge, which they later quoted, that Barros organized the meetings because the Qureshi associates were looking for the informant and Mr. Barros was trying to throw them off. 20

Ref: Reasons for Judgment of the Court of Appeal, paras. 88, 98 [Record, p.47,50]

81. From the evidence given at trial, the majority's fact finding at paragraph 8 are not possible. Only one witness testified with respect to count 3 and that was Mirza Kassam. It was only he, (whom the Trial Judge found unreliable), who testified that Mr. Barros told him he knew he was the informer. There was no information before the court that Mr. Barros was "confronting individual~, telling them that he "knew" that person was the informer." Ref: Reasons for Judgment ofthe Court of Appeal, para. 8 [Record, p. 27]

82. The Court of Appeal factual findings regarding the meeting between Det. Brezinski and Mr. Barros is completely at odds with the Trial Judge's finding that the Appellant arranged the meeting with Det. Brezinski to discuss bail arrangements, not for the purpose of telling him he had discovered the identity of the informer. Ref: Reasons for Judgment of the Court of Appeal, para. 9 [Record, p. 27J

83. Nonetheless, the offence of obstructing justice, pursuant to section 139 of the Criminal Code, is a specific intent offence. The Trial Judge found on the evidence that there was no such specific intent. Yet, the Court of Appeal used its speculation noted above and the 'view' of the complainant Det. Brezinski to determine that the Appellant had this specific intent.

84. The majority decision indicates that the "Crown challenges the finding that the meeting was about bail, not ending the charges". This is most definitely a challenge to the facts and not the law. Veit, J.'s finding that the meeting was about bail is supported by the evidence. After the comments quoted by the majority at paragraph 82, Det. Brezinski testified for a long time more. Det. Brezinski acknowledged that guns were discussed at the meeting and that dropping charges for guns was 'nonsense'. Ref: Reasons for Judgment of the Court of Appeal, para. 81-82; [Record, p.45] Trial Transcript, p. 64:1 - 66:21 & 142:23-26 [Supplementary RecordJ 21

85. The Court of Appeal's surmised that the meeting could not have had to do with bail because communication between Det. Brezinski and the Federal Department of Justice, or between Mr. Barros and Mr. Tarrabain, would be too late to affect bail. There was ample evidence that the meeting had to do with bail. What there was no evidence of, however, was that the meeting was too late to affect bail. There was no evidence of what time bail was set for, there was no reason to believe that a telephone call could not have been made by Det. Brezinski to the Crown, or Mr. Barros to Mr. Tarrabain, or that bail could not be stood down. All parties involved owned and operated cell phones. The bail on this occasion was being handled by the Crown and not a police officer and there was flexibility. As such, the pure speculation was unfounded and not supported by the evidence. Ref: Reasons for Judgment of the Court of Appeal, para. 83; [Record, p. 46] Trial Transcript, p. 56: 19-59: 1 [Supplementary Record]

86. The Trial Judge specifically found Mr. Kassam to be unreliable and discounted his evidence. There was ample support for this conclusion. In spite of this finding, and its lip service that credibility findings of trial judges are subject to great deference, the Court of Appeal continued to quote vigorously from the testimony of Kassam.

87. The Court of Appeal below also indicated that the Appellant did not testify at trial and, therefore, the evidence of Kassam was uncontradicted. However, a statement made by the Appellant was admitted into evidence and throughout their deciSion, the Court of Appeal referred to information in that statement to suggest that it supports Kassam's evidence.

88. The Trial Judge had the benefit of observing the witnesses throughout the· lengthy trial and making many sub-rulings on issues prior to the final adjudication. She had an excellent opportunity to observe the witnesses on more than one occasion and to hear detailed evidence on many different levels. Her assessment of those witnesses and their evidence should not have been lightly disturbed. 22

89. Nevertheless, the Court of Appeal reviewed and substituted the findings of fact, claiming that the Trial Judge's finding of facts reflected a material misapprehension of the evidence.

90. Thus, the Court of Appeal below erred by exceeding their jurisdiction in determining a Crown appeal from acquittal by not only interfering with questions of mixed fact and law but also by assuming or misconstruing facts not in evidence.

91. The learned Trial Judge's analysis of the evidence and her application of that evidence to the elements of the offence were flawless and correct. She is a seasoned and well-respected Trial Judge whose finding of facts is deserving of the highest level of deference.

92. By ensuring that the law on the standard of review for Crown Appeals from acquittal is updated in accordance with this Honourable Court's most recent pronouncements, this Honourable Court can import some finality and consistency in the application of the law in various jurisdictions across Canada.

93. In addition to clearing the legal slate of conflicting decisions, this Honourable. Court can ensure that individuals whose trials end in acquittal will not be subjected to Crown appeals which, while presented as "error of law" reviewed, are really attempts to challenge "unreasonable acquittals" in the hope that Courts of Appeal might take a different view of the evidence and impose a different result. This is a state of affairs that harkens back to the early 1970s in Canada, before the Criminal Code was modernized, and must be assiduously avoided. 23

PART IV SUBMISSIONS CONCERNING COSTS

94. The Appellant ought to receive his costs in this appeal as the Crown and the Court of Appeal erred in challenging the acquittal granted by the learned Trial Judge on the basis of a disagreement with her acceptance and interpretation of the facts and not based upon any error of law. Ref: R. v. Huard & Zaidi, 2009 O.J. No. 6221 (Sup. C.J.) (OL)[Tab JJ; Lahaie v. Canada (Attorney General) [2008J, D.L.R.(4th) 213 (ON S.C.), paras. 233-259; Ont. C.A.: 2010 ONCA 516 [TAB DJ; Leave to Appeal, Supreme Court of Canada pending

95. In addition, this is a very important and sensitive area of the law which must have an adjudication by this Honourable Court. Its outcome may have a serious impact on the conduct of defence counsel throughout the country.

PART V ORDERS SOUGHT

96. That the within Appeal be granted and the deciSion of the learned Trial Judge be restored.

DATED at the City of Calgary, in the Province of Alberta, this 3~ day of September, A.D. 2010.

MESSRS. Wolch, Hursh, deWit, Silverberg & Watts .

~~ ~ HERHwoLciCo:c. ~Counsel for the Appellant 24

TABLE OF AUTHORITIES

TAB AUTHORITY PARAGRAPHS A Bisaillon v. Keable, [1983]2 S.C.R. 60 34,39,44 B Chatterjee v. Ontario (Attorney General), 45 [2009]1 S.C.R.624, 2009 SCC 19

C Crown Prosecutors' Policy Manual in Alberta, Confidential Police Informants (Privilege l 62 chapter, under the heading, 'Police Duty' (http://justice.alberta.ca/programs_servi ces/criminal_pros/Publications%20Libra ry%20%20Criminal%20Prosecutions/Cr ownProsecutors'PolicyManual.aspxlDis pForm.aspx?ID=3) D Lahaie v. Canada (Attorney General) [2008]. D.L.R.(4th) 213 (ON S.C.); ant. C.A.: 2010 94 ONCA 516; Leave to Appeal, Supreme Court of Canada pending E Named Person v. Vancouver Sun, [2007] 3 S.C.R. 253 58

F R. v. Barros, Transcript June 17, 2005 6 G R. v. Basi, 2009 SCC 52 61 H R. v. Graveline, [2006]1 S.C.R. 609 72

I R. v. Hebert, [1990] 2 S.C.R. 151 63 J R. v. Huard & Zoldi, 2009 O.J. No. 6221 94 (Sup. C.J.) (QL) K R. v. Leipert, [1997]1 S.C.R. 281 33,41

L R. v. Uew, [1999]3 S.C.R. 227 63

M R. v. Neil, [2002]3 S.C.R. 631, 2002 SCC 70 2

N R. v. Scott [1990],3 S.C.R. 979 39

a R. v. Tarrabain, O'Byrne & Company, [2006] 65,66 54 Alta. L.R. (4th) 357; 2006 ABQB 14 25

P Sophonow Inquiry, Cory, J. (http://www.gov.mb.ca/justice/publications/sop 49 honow/index.html?/) 26

PART VII §TATUTORY PROVISIONS

Criminal Code of Canada, R.S.C. 1985, c. C-46, SS. 139(2), 346(1.1 )(b)

. -: :.\,". Page 1 of 1

Current to September 27, 2010

R.S.C. 1985, c. C-46, s. 346

[eff January I, 1996 to April 30, 2008](Past Version)

Criminal Code

R.S.C. 1985, c. C-46

PART IX OFFENCES AGAINST RIGHTS OF PROPERTY

Robbery and Extortion

SECTION 346.

Extortfon

346. (I) Every one commits extortion who, without reasonable justification or excuse and with intent to obtain anything, by threats, accusations, menaces or violence induces or attempts to induce any person, whether or not he is the person threatened, accused or menaced or to whom violence is shown, to do anything or cause anything to be done.

Extortion

(lJ) Every person who commits extortion is guilty of an indictable offence and liable

(a) where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a tenn of four years; and

(b) in any other case, to imprisonment for life.

Saving

(2) A threat to institute civil proceedings is not a threat for the purposes of this section .

•• Editor's Table .* For changes prior to Editor'S Tables, please see other sources for in force information.

Provision Changed by In force Authority

346(1.1) 1995 c39 s150 1996 Jan 1 SI/96-2 *****

R.S.C. 1985, c. C-46, s. 346,·R.8,p, l&~, f. 27 (1st Supp.), s. 46; S.C. 1995, c. 39, s. 150. -F' ,". ',"

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Current to September 27, 2010

R.S.C. 1985, c. C-46, s . .139

[eff since December 12, I 988](Current Version)

Criminal Code

R.S.C. 1985, c. C-46

PART IV OFFENCES AGAINST THE ADMINISTRATION OF LAW AND JUSTICE

Misleading Justice

SECTION 139.

ObstrucllngjU1tice

139. (1) Every one who wilfully attempts in any manner to obstruct, pervert or defeat the course of justice in ajudicial proceeding, .

(a) by indemnifying or agreeing to indemnify a surety, in any way and either in whole or in part, or

(b) where he is a surety, by accepting or agreeing to accept a fee or any form of indemnity whether in whole or in part from or in respect of a person who is released or is to be released from custody, is guilty of

(c) an indictable offence and is liable to imprisomnent for a term not exceeding two years, or

(d) an offence punishable on summary conviction.

Idem

(2) Every one who wilfully attempts in any manner other than a manner described in subSection (1) to obstruct, pervert or defeat the course ofjustice is guilty of an indictable offence and liable to imprisomnent for a term not exceeding ten years.

Idem

(3) Without restricting the generality of subseption (2), every one shall be deemed wilfully to attempt to obstruct, pervert or defeat the course ofju~ti~1) Who in ajudicial proceeding, existing or proposed, file:IIC:IUsers\kcollins\AppDataILocaIIMicrosoftIWindowsITemporary Internet FilesIOL... 01/10/2010 Page 2 of2

(a) dissuades or attempts to dissuade a person by threats, bribes or other corrupt means from giving evidence;

(b) influences or attempts to influence by threats, bribes or other corrupt means a person in his conduct as a juror; or

(c) accepts or obtains, agrees to accept or attempts to obtain a bribe or other corrupt consideration to abstain from giving evidence, or to do or to refrain from doing anything as a juror.

R.S.C. lR.S.C. 1985, c. C-38, s. 970, c. C-34, s. 127; R.S.C. 1970, c. 2 (2nd Supp.), s. 3; S.C. lR.S.C. 1985, c. C-38, s. 972, c. 13, s. 8.

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