In the Supreme Court of Canada (On Appeal from the Court of Appeal for British Columbia)

File Number: 32719

IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA)

BETWEEN:

REGINA Appellant/Respondent on Cross-appeal (Appellant)

and

UDHE SINGH (DAVE) BASI BOBBY SINGH VIRK ANEAL BASI

Respondents/Appellants on Cross-appeal (Respondents)

FACTUM OF THE RESPONDENT VIRK ON APPEAL (Pursuant to Rule 42 of the Rules ofthe Supreme Court of Canada) and

FACTUM OF THE APPELLANT VIRK ON CROSS-APPEAL (Pursuant to Rule 43 of the Rules of the Supreme Court of Canada)

REDACTED COPY

Solicitors for the Respondent Ottawa Agent for the Respondent Bobby Singh Virk: Bobby Singh Virk: . .

Kevin G. McCullough Brian A. Crane, Q.C. Joseph J. Blazina Gowling Lafleur Henderson McCullough Blazina Dieno Suite 2600-160 Elgin Street & Gustafson Ottawa, ON, KIP 1C3 2ndFloor, 1011 Fort Street Telephone: 613-786-0212 Victoria, B.C. V8V 3K5 Facsimile: 613-788-3500 Telephone: 250-480-1529 Facsimile: 250-480-4910 Solicitors for the Respondent Ottawa Agent for the Respondent Udhe Singh (Dave) Basi: Udhe Singh (Dave) Basi:

P. Michael Bolton, Q.C. Brian A. Crane, Q.C. Claire Hatcher Gowling Lafleur Henderson Bolton & Muldoon Suite 2600-160 Elgin Street Barristers & Solicitors Ottawa, ON, KIP 1C3 Suite 360, 1122 Mainland Street Telephone: 613-786-0212 Vancouver, B.C. V6B 5L1 Facsimile: 613-788-3500 Telephone: 604-687-7078 Facsimile: 604-687-3022

Solicitors for the Respondent Ottawa Agent for the Respondent heal Basi: heal Basi:

Joseph M. Doyle Brian A. Crane, Q.C. Johnson Doricic Doyle Gowling Lafleur Henderson Trial Lawyers Suite 2600-160 Elgin Street 2ndFloor, 195 Alexander Street Ottawa, ON, KIP 1C3 Vancouver, B.C. V6A 1B8 Telephone: 613-786-0212 Telephone: 604-688-8338 Facsimile: 613-788-3500 Facsimile: 604-688-8356

Solicitors for the Appellant: Ottawa Agents for the Appellant:

W.S. Berardino, Q.C. Jeffrey W. Beedell Michael Sobkin Lang Michener LLP 50 O'Connor Street Hunter Litigation Chambers Suite 300 Suite 2100 - 1040 West Georgia Street Ottawa, ON KIP 6L2 Vancouver, B.C. V6E 4H1 Telephone: 613-232-7171 Telephone: 604-891-2400 Facsimile: 613-23 1-3191 Facsimile: 604-647-4554 Email: [email protected] TABLE OF CONTENTS

Page

Tab 1 FACTUM OF THE RESPONDENT VIRK ON APPEAL

Part I Statement of Facts 1 Overview 1 Response to the Appellant's Statement of Facts 4 ,Disclosure: The Context 4 The Proceedings Below 7 Part I1 Respondent's Position on Issues 12 Part III Statement of Argument 13 The Decision in Named Person 13 The law prior to Named Person 17 The Respondents have the right to a fair hearing 20 Is automatically excluding counsel for the accused really "fair'? 24 The Issue of an Amicus 28 Did the Courts below err in "departing" from Named Person? 30 Part IV Submissions on Costs 35 Part V Nature of Order Sought 3 5 Part VI Table of Authorities 36 Part VII Statutory Provisions 36

Tab 2 FACTUM OF THE APPELLANT VIRK ON CROSS-APPEAL

Part I Statement of Facts 37

Part I1 Statement of Issues 43

Part 111 Statement of Argument 44

Part IV Submissions on Costs 52

Part V , Nature of order Sought

Part VI Table of Authorities

Part VII Statutory Provisions File Number: 32719

IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA)

BETWEEN:

REGINA AppellantRespondent on Cross-appeal (Appellant)

and

UDHE SINGH (DAVE) BASI BOBBY SINGH VIRK ANEAL BASI

Respondents/Appellants on Cross-appeal (Respondents)

FACTUM OF THE RESPONDENT VIRK ON APPEAL (Pursuant to Rule 42 of the Rules of the Supreme Court of Canada) REDACTED COPY

Solicitors for the Respondent Ottawa Agent for the Respondent Bobby Singh Virk: Bobby Singh Virk:

Kevin G. McCullough Brian A. Crane, Q.C. Joseph J. Blazina Gowling Lafleur Henderson McCullough Blazina Dieno Suite 2600-160 Elgin Street & Gustafson Ottawa, ON, Kl P 1C3 2"* Floor, 1011 Fort Street Telephone: 613-786-0212 Victoria, B.C. V8V 3K5 Facsimile: 613-788-3500 Telephone: 250-480-1529 Facsimile: 250-480-4910 PART I

STATEMENT OF PACTS

Overview

1. The Crown appeal in this matter arises pursuant to an order of this Court granting leave to appeal from the July lo", 2008 decision of the British Columbia Court of Appeal, which dismissed the appellant's appeal from the December 7th,2007 ruling of Madam Justice

Bennett which in turn dismissed the appellant's application, brought pursuant to s. 37 of the Canada Evidence Act, that counsel for the Respondents be excluded from an enquiry into a claim of informer privilege advanced by the Crown on behalf of an unnamed person.

2. Chief Justice Finch dismissed the appeal on the grounds that the ruling of Bennett J. did not amount to an order for disclosure, and therefore the Court was without jurisdiction to hear the matter. In the alternative, Finch C.J. held that Bennett J. had not erred in deciding that the hearing into the claim of informer privilege could proceed, in camera, with counsel for the ~es~ondentspresent although subject to undertakings not to disclose anything heard during the course of the hearing. Justice Donald decided that although the Court had the jurisdiction to hear the appeal, he agreed with Finch C.J. that the trial judge's order was one which was within her power to make, and she had not erred. Ryan J.A. dissented.

3. There are two issues on this appeal. The first issue is whether the Court of Appeal had, or whether this Honourable Court has, the jurisdiction to hear this matter. This issue will be addressed in the Respondent Virk's factum on the cross-appeal. The second issue is whether, assuming that the trial judge's order in this matter does amount to an order for

disclosure, the learned trial judge erred in law in deciding that counsel for the Respondents,

subject to appropriate court orders and undertakings regarding non-disclosure, could be

present at the in camera hearing where evidence would be led which could or would

identify the person for whom the Crown sought informer privilege.

4. The Respondent says, with respect, that regardless of any decision which this Court may

make either on the issue of jurisdiction or on the merits of the decision itself, a proper

resolution of this matter must include an analysis as to how enquiries into claims of

informer privilege can best be conducted in a criminal trial so as to protect both the

accused's right to make full answer and defence and the claim of privilege which is sought

to be established.

5. The Appellant argues that the recent decision of the Supreme Court of Canada in

Named Person mandates an in camera exparte hearing in order to determine if informer

privilege exists. With respect, this argument is flawed. The Court's decision in Named

Person does not stipulate that a hearing to determine whether informer privilege exists

must be held exparte. In fact, the Court specifically acknowledges that parties to the

action, even where adverse in interest or challenging the existence of the privilege, may be

present during the in camera hearing.

6. Madam Justice Bennett was very aware of the need for caution in hearing evidence to

determine whether a claim of informer privilege could be substantiated. Her ruling that defence counsel could be present, on undertakings, during the in camera hearing, was a proper exercise of her power to protect the accused's right to a fair trial, a right specifically recognized in section 37.3 (1) of the Canada Evidence Act.

7. It is important to remember the context of the decision made in the case at bar. The application for disclosure of the documents over which a claim of privilege was asserted was informed by allegations of police deception and bad faith. Madam Justice Bennett herself had previously found that there had been "substantial" failures to respect the

Accused's disclosure rights. As recognized by Justice Bennett, vetting codes on several of the documents over which the Crown claimed privilege indicated that the material portions

All of these circumstances militated in favour of defence counsel's presence during the hearing.

8. The Appellant asserts that an accused necessarily loses all right to participate in a hearing to determine a claim of privilege simply because the Crown m,apriori, that his participation, or the participation of his counsel, would breach the privilege sought to be established. A claim to privilege must be advanced on the basis of evidence, not simply submissions. The Respondent says that an automatic and total exclusion of the accused or his counsel from such an enquiry is both unwarranted and unfair. Response to Appellant's Statement of Facts

9. The Respondent generally agrees with the Appellant's Statement of Facts, with the following exceptions and amplifications:

Disclosure: The Context

10. Disclosure in this matter has been both voluminous and contentious. As part of the

context in which the documents over which informer privilege is now claimed eventually

came to be disclosed to the defence, the following facts are relevant:

11. On December 281h, 2003, the police conducted what has been referred to as the "raid"

on the legislature. An Information was laid in the B.C. Rail case in December 2004.

Disclosure commenced on January 20", 2005, and a Direct Indictment was filed on January

28th,2005. On March lo", 2005, 11,000 documents were disclosed to the defence. The

following day, the Crown advised the Court that the disclosure was "substantially

completed" and that final disclosure would be complete in two to three weeks.

[Reasons of Bennett .I.of November 14,2006, in Respondents' Record, at pp. 41-42]

12. Despite the assurances of Crown counsel, disclosure continued to be provided to

defence over the following year and a half. In September 2005, another 4,483 pages were

disclosed, in October, another 68,910 pages, and in December another 16,066 pages. From

May to July 2006, another 10,000 pages were disclosed to the defence on CD's or DVD's.

[Reasons, supra, at par. 17-21] 13. On October 27", 2006, defence counsel filed an application for supervised access to the "Project Room", where documents pertaining to the B.C. Rail investigation were housed. The Crown opposed the application, saying that the relationship between confidential informants and the RCMP would be impaired if they knew that defence counsel was coming into the building, and the credibility of the police system would be

"fundamentally impaired" if counsel were allowed into the room. [Application in Appellant's

Record, Volume 1, at Tab 6; Crown submissions at par. 27-29 of Reasons, supra]

14. On November 14'~,2006, Bennett J. allowed the defence application, finding that "it cannot be said that basic disclosure has been met" as she was unable to conclude that all of the relevant documents had either been disclosed or identified as documents being withheld. Justice Bennett stated that "I do not accept the position of the RCMP, without evidence, that their relationship with informants would be impaired if defence counsel entered the building or Project Room." [Reasons, supra, at par. 311

15. Counsel was allowed supervised access to the B.C. Rail project room, and an inventory of the materials therein was conducted. On February 26th,2007, defence counsel filed a second application for disclosure, seeking, inter alia, access to the Heather Street

IPOC (proceeds of crime) Project Room, disclosure of all police notes and witness statements, and disclosure of the contents of specific documents which had only been provided in vetted form. [in Appellant's Record, Vol. 1 at Tab 7 ] A lengthy hearing was held in

April and May 2007 to deal with this application. 16. On June 4", 2007 Justice Benhett allowed the application, and made a number of orders requiring the Crown to provide disclosure or to facilitate defence access to

disclosure. In her Reasons for Judgment, Justice Bennett stated, inter alia: ,

[I61 This case is complex and involves volumes of material. Already over 100,000 documents have been disclosed by the Crown in electronic form. Yet, problems with disclosure continue. This was best demonstrated when, during the hearing, the Crown received numerous pages of police notes fiom an officer who had failed to disclose the contents of a second notebook.

[17] Another example of the problems with disclosure is that a statement of the main Crown witness, Erik Bornman, taken in February 2005 was not disclosed until January 29,2007. .. .

[28] ... There has been a substantial failure to respect the disclosure rights of the accused in this case.

[34] I noted, in paragraph 22 of my November 2006 reasons, that Corporal Mar deposed that in May 2006 she was still requesting notes, reports and documents fiom officers involved in the investigation. This was in spite of the fact that search warrants were executed in December 2003 and charges laid in December 2004. I was, to say the least, surprised that the police notes had not all been disclosed at that point. However, during the course of this hearing, Staff Sgt. Bishop discovered a second notebook and disclosed further, relevant notes on May 1,2007. Other relevant notes were disclosed in December 2006 and February 2007.

[5 11 On May 15,2007, weeks into this motion, counsel for the defence advised that on the last day of court the previous week, they received a report fiom Cpl. Reed marked "not for disclosure" which indicates that when he interviewed Kelly Reichert, the Executive Director of the Liberal Party, he turned off the tape and had a conversation with Mr. Reichert regarding whether the Liberal Party wished to proceed with charges in relation to an investigation regarding Dave Basi, which was not BC Rail, but an allegation of fiaud on the Liberal Party. Cpl. Reed's notes do not indicate that this conversation even occurred, never mind including any details or the fact that a conversation occurred when the tape was turned off. .. . [59] The defence is entitled to disclosure in a timely fashion. This rather extensive review of the many problems with this case demonstrates that disclosure has not been sufficiently made in a timely way. The police must take the time now to review all that each has done to ensure the accused's constitutional rights are protected. I regret that I must make the following order in such broad and sweeping terms. However, given the substantial failure to respect the disclosure rights of the accused, this order is the only way I believe I can ensure that no miscarriage of justice will occur. [Reasons of June 4,2007, in Respondents' Record, par. as noted, all emphasis added]

The Proceedings Below

17. The hearing on the application to proceed in camera and exparte began on December 31d, 2007 in open court. [see Appellant's Record, Vol. 1, Tab 13, at p. 1941 -

[the documents in issue are reproduced in the Appellant's Record, Vol. 2, at tabs 6 and 71 19. The in camera hearing was adjourned. In open court, Bennett J. advised counsel for the media that the Crown was claiming privilege over certain documents, and entertained further

in submissions as to whether she should proceed camera. Bennett J. then ruled that counsel I for the media would be excluded, and the hearing would continue in camera.

20. When the in camera hearing resumed, defence counsel objected to the Crown's application. Submissions on the application were heard on December 3Tdand 4th,and

Justice Bennett pronounced her ruling, and gave reasons for judgment, on December 6". 25. On December 6", Madam Justice Bennett dismissed the Crown application to exclude defence counsel from the in camera hearing. Bennett J. reviewed the applicable principles of law and stated:

It is clear that the privilege is absolute, not discretionary, and is set aside only when the innocence at stake exception is successfully invoked. The issue I have to wrestle with at this point is whether the privilege applies at all and how to determine that without violating the privilege. Most cases of the application of the privilege are crystal clear. For example, where the police rely on a confidential informant to obtain a search warrant. However, here the Crown is asking the Court to determine the issue of whether the privilege applies, and from the redacted notes that I have seen, what is involved is not readily apparent. Further information is necessary.

[Reasons for Judgment of Dec. 6, in Record, Vol. 1, Tab 2 at p. 91

26. In open court, following brief submissions by counsel for the media and a further ruling on a renewed application for media attendance at the in camera hearing, Crown counsel advised the trial judge that it intended to invoke s. 37 of the Canada Evidence Act. crown certified orally: ". .. that it objects to the disclosure of information on the grounds that the information should not be disclosed because it is subject to informer privilege, and that the presence of defence counsel in the in camera hearing would violate that privilege." wecord, Vol. 1, Tab 13, pp. 176-1771

27. The Court went in camera, and defence counsel made submissions on the application. 3 1. In dismissing the Crown application to proceed exparte, Bennett J. acknowledged that the defence took issue with whether the privilege applied at all. She noted that "I have at this juncture been told no circumstances regarding how this person came to the police. .. . I have not even been told if the witness came to the police in confidence." [Reasons, in Crown

Appeal Book, p. 380, par. 91 Bennett J. also noted that a number of police involved in the investigation all appeared to be aware of the alleged informer's identity, and the vetting code on one of the documents suggested that at some point informer privilege was not a concern. She recognized that defence counsel are "far more familiar with the nuances of this case" than she was herself. She stated: "The point I am trying to make is that it is not clear-cut in this case whether the privilege applies and that is apparent from the Crown's submission. It is a live issue when in most cases it is not." [Reasons, supra, at pp. 382-3833 12

PART I1

RESPONDENT'S POSITION ON ISSUE

32. The Respondent says that there is no single "proper procedure" which must be followed in every case where a claim of informer privilege is raised by the Crown in a criminal trial, and the trial judge did not err in adopting the procedure which she did in the case at bar. PART I11

STATEMENT OF ARGUMENT

The decision in Named Person

33. The essence of the Appellant's argument appears to be that in criminal proceedings such as the case at bar, where an objection to the disclosure of information on the basis of informer privilege is raised pursuant to s. 37 of the Canada Evidence Act, (and indeed in all cases) the accused and counsel for the accused be excluded from the in camera hearing held to decide whether, in fact, the privilege exists at all.

34. The Appellant argues that in Named Person, the Supreme Court of Canada was emphatic that at a stage one determination the 'only' persons permitted at the hearing are the judge, the person claiming the privilege and the Attorney General of Canada or Crown.

[Appellant's factum, par. 451

35. With respect, the Court in Named Person did not say this. Nor did it puport to overturn the well-established principle that a judge hearing an application under s. 37 of the Canada Evidence Act has the discretion to decide whether or not it is necessary to order that part of all of the proceedings be conducted exparte.

36. The order that was challenged in Named Person was an order allowing counsel for various media groups to review documents prepared by an amicus curiae, who in turn had been provided with all the documents and exhibits provided to the court, as well as a transcript of in camera proceedings, in an extradition hearing where the person sought to

be extradited claimed informer privilege. Section 37 of the Canada Evidence Act was not

involved in any manner.

Named Person v. Vancouver Sun, [2007] S.C.J. No. 43, at par. 7-14

37. The Court noted that informer privilege is of such importance that once found, courts

are not entitled to balance the benefits enuring from the privilege against countervailing

considerations, [par. 191 and that "Once it has been established that the privilege exists, the

court is bound to apply the rule. [par. 231 The Court also stated that "This is a highly

exceptional case." [par. 241 (emphasis added)

38. The Court noted that informer privilege arises most often in the course of a criminal

trial, when a Crown witness is asked on cross-examination about the source of some

information which led to the trial. The Court stated: "I do not think it is necessary at this

time to weigh in on the specific application of the open courts principle in such

circumstances." The Court went on to state:

In order to see clearly how this ought to play out, I think it is useful to describe the procedure to be followed by a judge in a case of informer privilege such as the one before the Court. The procedure described below, although informed by the particular facts of this case, will nonetheless provide guidance in all cases where a question of informer privilege arises; other circumstances may of course require the court to modify this approach accordingly.

Named Person, supra, at par. 44 (all emphasis added) 39. The Court then noted that in a proceeding where an individual who is "in the midst of criminal or quasi-criminal proceedings" (such as a person facing extradition proceedings or an accused in a criminal trial) for some reason discloses his status as a confidential informer, proceedings should proceed in camera, and under no circumstances should any

"third party" be admitted to those proceedings. [par. 45-47]

40. It is important to read these passages from Named Person in the context of the circumstances of that case and in light of the specific limits the Court itself placed on this proposed procedure. First, the Court was dealing with a situation where the only two

"parties" to the proceeding (a committal hearing) were the Attorney General and the person whose extradition was sought. In such circumstances, it is understandable that the only two "parties" in the proceeding would be the only two "parties" in the in camera hearing.

The Court was not dealing with a criminal trial where the Crown was seeking to assert informer privilege for a person who was not a "party" to the proceeding.

41. Moreover, the Court specifically recognized that even in a case where the only two

"parties" to a proceeding are the individual claiming the privilege and the Attorney

General, in some cases the Attorney General might well dispute the individual's claim to the privilege. [at par. 481 In other words, the Supreme Court of Canada specifically contemplated a situation where an individual asserting the privilege could be a confidential informant and the Attorney General either would not know it, or would want to challenge the claim for the privilege. 42. Such a situation is not hard to imagine. For example, in the context of an extradition

hearing, counsel representing the extraditing state may well be unaware of the fact that the person whose extradition is sought may have acted as a confidential informer in either the

host country or the extraditing country. In such circumstances, counsel may well wish to

challenge the claim of informer privilege. Similarly, in the context of a criminal

prosecution, the accused may claim informer privilege with respect to information

provided in separate but related matters about which the Crown prosecutor is ignorant.

43. Clearly, the Court in Named Person was not saying that a "party" to the proceeding

must be excluded from the in camera hearing simply because that party is either ignorant

of the basis for the claim or disputes the existence of the privilege.

44. In the case at bar, there is no doubt that the Respondent is a "party" to the proceeding.

He is an accused in a criminal trial proceeding by way of direct indictment. He is not some

"third party" attempting to obtain standing. Although he disputes the existence of the

privilege claimed, nothing in the Court's decision in Named Person mandates his

counsel's automatic exclusion from the in camera hearing. Nor does Named Person

purport to remove the discretion of a trial judge presiding at such a hearing to decide

whether that hearing ought or ought not to be conducted exparte.

[It should be noted, as recognized in Ruby v. Canada, that "ex parte", in a legal sense, usually means a proceedmg or a procedural step that is taken or granted at the instance and for the benefit of one party only, without notice to or argument by any adverse party. In the case at bar, "ex parte" is not used in this manner. Rather, it is used, perhaps imprecisely, to refer to a proceedmg in which neither the accused nor counsel for the accused is physically present when testimony or other evidence in support of the application is presented] The law prior to Named Person

45. Counsel for an accused's right to be present and heard during the "first stage" of a

section 37 hearing, i.e., the stage at which the existence of the privilege is determined, with respect to informer privilege in particular, was specifically recognized by the Ontario Court

of Appeal in R. v. Pilotte.

R. v. Pilotte (2002), 163 C.C.C. (3d) 225 (Ont. C.A.)

46. In that case, the Federal Crown objected to the disclosure of materials over which he

claimed informer privilege under s. 37. The defence advised that it was not seeking

disclosure of any privileged documents, and the only issue to be decided was which, if any,

of the documents were privileged. Defence counsel consented to the Crown proceeding

with the hearing on this issue in his absence, but on appeal the accused argued that this

procedure breached his rights to be present at his trial.

47. The Court of Appeal noted that the appellant's counsel had consented to the procedure,

and, since a hearing under s. 37 is separate and distinct kom trial proceedings, s. 650 of the

Code did not apply. Charron, J.A., for the court, stated:

Of course, even if s. 650 does not extend to the s. 37 inquiry, the appellant nonetheless had the right to be heard on the Federal Crown's s. 37 application and the question remains whether the procedure that was adopted violated the appellant's rights in any way. The appellant undoubtedly had an interest in the proceeding. However, it is my view that the appellant was given a full opportunity to participate in the proceeding, that his views were heard through counsel, and that he expressly consented to the procedure that was followed, including the private meeting he now objects to on this appeal. R. v. Pilotte, supra, at par. 47 (emphasis added) 48. Madam Justice Charron, for the court, expressly approved of the decision of the British

Columbia Court of Appeal in R. v. Meuckon, and held that "there is no hard and fast rule" on what procedure will be appropriate in an application to claim informer privilege in the following passage:

In the circumstances of this case, it was open to the applicationsjudge to adopt the procedure that was suggested to him and consented to by all interested parties on the s. 37 application. There is no hard and fast rule on what procedure will be appropriate on this kind of application. Further, given the wide range of information that can form the subject-matter of a s. 37 inquiry, it would not be advisable for this court to establish any such rule. The British Columbia Court of Appeal in Meuckon, supra, recognized that the appropriate procedure to follow in

reviewing the information would dependA on the circumstances. The Court stated as follows (at 199-200):

If an objection is made. and the public interest is specified. then the trial iudge may examine or hear the information in circumstances which he considers appropriate, including the absence of the parties, their counsel, and the public. Whether the trial judge does hear or examine the information, or whether he does not, the trial judge may then either uphold the claim of Crown privilege or order the disclosure of the information either with conditions or unconditionally.

R. v. Pilotte, supra, at par. 52 (all.emphasis added), citing R. v. Meuckon (1990), 57 C.C.C. (3d) 193 (B.C.C.A) per Lambert, J.A.

49. Madam Justice Charron emphasized the need for flexibility in the procedures to be adopted when assessing a claim of informer privi1ege;and recognized the Court's reluctance to sanction in camera exparte proceedings in the following passage:

In my view, and I express this view with the benefit of appellate hindsight, it would have been preferable if the private meeting had been recorded, or better still, if the required assistance had been provided to the applications iudge in a manner that did not involve a private meeting. However, I find no reversible error in this case where the procedure was adopted with the express consent of all interested parties. Of necessity, there must be some flexibility on the procedure that should be followed on a s. 37 inquiry.

R. v. Pilotte, supra, at par. 52 (emphasis added) 50. The need to afford a trial judge considerable discretion in deciding how best to address a claim of privilege advanced under s. 37 was also specifically recognized by the Minister of Justice in discussions with respect to the repeal of s. 37.21 of the Evidence Act.

51. Section 37.21 of the Canada Evidence Act, [repealed 2004, c. 12, s.181 stated:

37.21 (1) A hearing under subsection 37(2) or (3) or an appeal of an order made under any of subsections 37(4.1) to (6) shall be heard in private. (2) The court conducting a hearing under subsection 37(2) or (3) or the court hearing an appeal of an order made under any of subsections 37(4.1) to (6) may give (a) any person an opportunity to make representations; and (b) any person who makes representations under paragraph (a) the opportunity to make representations exparte.

52. As is apparent, s. 37.21 provided explicit statutory recognition of the discretion vested in a judge hearing a s. 37 application to receive exparte representations from any party.

However, it also mandated that all hearings under ss. 37(2) and 37(3), and all appeals of orders made under ss. 37(4.1) through (6) had to be heard in private. The section was repealed in toto, not because Parliament wished to take away the judge's discretion, but because Parliament felt this provision went too far in limiting a court's discretion. As stated by Mr. Irwin Cotler, then Minister of Justice and Attorney General of Canada:

As a consequence of 911 1, we have in the legislation at this point a mandatory in-camera exclusion of certain kinds of information, such as the identity of an informant. Here. one might sav. is an example of where we somewhat overreached in our legislation in the immediate aftermath of the 911 1 fallout. [in Appellant's Record, Vol. 2, Tab 8 at p. 189, all emphasis added] The Respondents have the right to a fair hearing

53. The Respondent accepts that fair trial interests can not somehow be 'weighed' into a decision as to whether or not informer privilege exists, and Madam Justice Bennett never said this. The issue of whether or not the privilege exists is, per se, completely separate froni &y sort of balancing of rights analysis. However, it is wrong to say, as the appellant does, that this means that an accused has no rights in the of determining this issue.

54. This court in Named Person sanctioned the appointment of an amicus to assist the trial judge in a first stage enquiry precisely because the court was concerned about the issue of procedural fairness, in circumstances where the only two parties at the enquiry would both be arguing that the privilege ought to apply. The concern for procedural fairness is much greater in the case at bar, where fair trial interests are directly engaged.

55. The House of Lords has expressly recognized that an accused does not lose her rights to a fair trial simply because the Crown objects to disclosure of certain information as privileged. In R. v. H., Lord ~in~hamstated that:

There is as yet little express sanction in domestic legislation or domestic legal authority for the appointment of a special advocate or special counsel to represent, as an advocate in PI1 matters, a defendant in an ordinary criminal trial, as distinct from proceedings of the kind just considered. But novelty is not of itself an objection, and cases will arise in which the appointment of an approved advocate as special counsel is necessaw. in the interests of justice, to secure protection of a criminal defendant's right to a fair trial. R. v. H., [2004] A.C. 134 at par. 22 (H.L.) 56. Courts in the United States have also explicitly recognized that an accused's fair trial rights are directly involved in the process of determining a claim for informer privilege.

As a result of the Supreme Court's decision in Roviaro v. United States, the scope for challenging non-disclosure of an informer's identity is considerably wider than in Canada.

The appellant correctly notes that a number of procedural mechanisms have been developed, although it appears that the use of an amicus is not yet well established.

57. A number of judicial districts in the United States have held that if counsel for the

State will be present at the in camera hearing, then counsel for the accused has a right to be present as well, subject to court order against disclosure. As stated in the District Court decision in United States v. Lopez:

The procedure incorporated in Proposed Rule 510 provides a sensible and effective means of carrying out the Supreme Court mandate. .. . The trial judge requires disclosure of the informer's identity and in some cases actually examines hi,on the record but in camera. If one counsel is present then all counsel must be present. The record is sealed and preserved for the appellate courts while all present are enjoined not to reveal the testimony given. United States v. Lopez, 328 F. Supp 1077 (1971) [emphasis added]

58. Similarly, in United States v. Savage, and United States v. Grisham, two separate

District Court decisions referred to by the appellant, the courts decided that the best way to proceed would be by way of an in camera hearing held outside the presence of the government's attomey, the defendant and the defense attomey.

59. In United States v. Anderson, the Court of Appeals for the Ninth Circuit held that the trial judge has the responsibility for deciding the proper procedure to be followed: Thus, rather than establishing a fixed rule that either requires or precludes disclosure of the informant's identity when probable cause is in issue, we hold that the responsibility for striking the proper balance in each case rests with the trial judge. In striking that balance the trial judge, in the exercise of his discretion, can conduct an in camera hearing to which the defense counsel, but not the defendant, is admitted. The defense counsel could then be permitted to participate in the in camera proceedings and to cross-examine the in camera witness or witnesses. When defence counsel has been admitted to the in camera hearing for this limited purpose, the district court can and should, when appropriate, place defense counsel under enforceable orders against unwarranted disclosure of the evidence he has heard. Cf Alderman v. United States [citations omitted] If the trial judge is satisfied that an in camera hearing in which neither the defendant nor his attorney participates is adequate to explore the foundations of the informant's information, then no disclosure is necessary. The trial court's determination will be reversed only if it constitutes an abuse of discretion or constitutional error. United States v. Anderson, 509 F. 2nd724 (9" Cir. 1974)

60. The United States Court of Appeals for the Second Circuit expressly approved of this aspect of the decision in Anderson in its decision in Socialist Worker's Party. In that case, a civil matter where the plaintiffs moved for the disclosure of the names of nineteen confidential informants, the Court of Appeal expressed concern that the order of the trial judge, allowing counsel access to privileged information, subject to non-disclosure orders, might lead to disclosure for which there was no substantial need, and to "unnecessary rummaging in government files. Nevertheless, the Court held that:

However, it is bv now.wel1-established that a district judge, in the exercise of his discretion, may permit opposing counsel to participate iq and assist him in the conduct of in camera proceedings under a pledge of secrecy. See, e.g., United States v. Nixon, United States v. Anderson [citations omitted]. The order appealed from does not therefore create an issue of first impression or extraordinary significance, nor was its issuance ati abuse of discretion which warrants appellate review. Socialist Workers Party v. Attorney General, 564 F. 2nd19 (2d Cir. 1977) 61. The accused's fair trial rights, in the context of an application for information over which a claim of informer privilege is advanced, were specifically acknowledged by the

British Columbia Court of Appeal in R. v. Fisk. In that case, during the course of a murder trial defence counsel was provided a copy of police notes detailing information provided by an informant, on counsel's undertaking not to disclose the contents. Counsel brought an application for disclosure of the informant's name. The application was heard in camera; counsel for the defence was present and cross-examined the police officer who had made the notes. Ultimately, the application was unsuccessful. On appeal against conviction,

McEachern C.J.B.C. stated that:

I also regret the necessity for conducting proceedings in camera, but there is no other way to explore admissibility without possibly breaching the privilege before an exception is established. Once that reality is accepted, it follows inevitably that the trial judge must have the discretion to exclude the accused. The difference between disclosing information under an undertaking of confidentiality and proceedigs in camera is that the former is voluntary, while defence counsel has no choice in the latter. While there is still a risk whenever counsel cannot be completely frank and open with the client, there is some reason to be less concerned when the court has ordered proceedigs leading to possible disclosure of private information to be held in camera. R.v. Fisk(1996), 108 C.C.C. (3d) 63 atpar. 63 (B.C.C.A.)

62. Recognition of an accused's fair trial interests is also explicitly set out in s. 37.3 (1) of the Canada Evidence Act itself, which authorizes the judge presiding at a criminal trial to make "any order" that she considers appropriate in order "to protect the right of the accused to a fair trial", while s. 37(5) authorizes the judge hearing an objection filed pursuant to s. 37(1) to order disclosure, subject to any conditions the court considers appropriate. Is automatically excluding counsel for the accused really "fair"?

63. The appellant argues that a substantive rule of law mandating the automatic exclusion of the accused and her counsel from all in camera hearings where the Crown seeks to establish a claim of informer privilege is "fair." It says this is "fair" because, in essence, the Crown can be trusted, the judge can be trusted (since deciding the issue is just

"a simple matter"), and an amicus can always be appointed.

64. The fact that the Crown is in a special position in an exparte proceeding, with duties of fairness and disclosure even greater than is normally the case, is no answer to the question of whether or not there should even be an exparte proceeding in the first place.

Moreover, the risk that an incomplete or biased picture might be presented to the trial judge is not always entirely in the Crown's control, particularly where the factual circumstances are not within the Crown's personal knowledge. In addition, in the case at bar, the learned trial judge has found that there have already been significant and ongoing failures in disclosure, despite the best efforts of the Special Prosecutor's team.

65. Much of the appellant's argument that the trial judge can be "trusted" to come to the correct decision in the absence of counsel for the accused is based on the assertion that it is always a "simple matter" for the trial judge to decide whether the privilege applies or not, particularly since there is no "balancing" of competing rights involved in this determination. With respect, not only is this assertion incorrect, but framing the issue in this manner also completely ignores the accused's rights to a "fair" hearing. 66. The Supreme Court of Canada has explicitly recognized that more than the mere assertion of the privilege is required in order to establish the existence of the privilege. In other words, there must be a factual enquiry into the issue, and the trial judge must be satisfied, on a balance of probabilities based on the evidence which she accepts, that the privilege applies. As stated by the Court in Named Person:

It is the responsibility of the judge at this stage to demand from the parties some evidence which satisfies the iudee. on balance, that the person is a confidential informer. Once it has been established on the evidence that the person is a confidential informer, the privilege applies. [at par. 471

67. Immediately following the above reproduced passage, the Court specifically recognized that: 1) trial fairness may be compromised if the only parties in the evidentiq hearing are arguing in support of the existence of the privilege; and 2) the trial judge may need assistance in assessing the evidence presented'at such a hearing. In the context of the circumstances that existed in Named Person, the Court suggested that such assistance could be provided by an amicus curiae. The Court stated: [emphasis added]

Of course, we must make allowances for the difficult position that the judge will be in, namely an in camera proceeding in which both parties - the alleged informer and the Attorney General -will often both be arguing in favour of the same conclusion. (Conceivably, of course, the Attorney General might dispute the individual's claim to informer privilege status.) If such a circumstance should arise, the non-adversarial nature of the proceedings at this stage may cause concern. Therefore, it may be permissible in some cases for a judge to appoint an amicus curiae in order to assist in the determination of whether or not the evidence supports the conclusion that the person is a confidential informer. .. . [par. 481 68. The Court went on to note that the mandate of the amicus must be precise, and it must be limited to the "factual task", as the judge alone makes the legal determination of whether the privilege applies. Given the importance of protecting the privilege in case it should be found to exist, the Court stated that the amicus should be provided with "only that information which is absolutely essential to determining if the privilege applies."

69. It was only affer recognizing these issues that the Court went on to say, as set out in paragraph 64 of the Appellant's factum, that no other parties need be present at the in camera hearing, since determining whether the privilege applies is "a simple matter," not involving a balancing of competing legal interests or rights.

70. By recognizing that a trial judge, in assessing whether the evidence justifies the existence of the privilege, may need the assistance of persons other than those seeking to establish that privilege, this Court has also necessarily recognized that not all such assessments will be a "simple" matter. In the case at bar in particular, the determination of whether the privilege exists appears to be anything but "a simple matter." m

71. Madam Justice Bennett described this key feature of the case at bar, which distinguishes it fiom most other cases where the Crown seeks to establish informe~ privilege, in the following passage in her Reasons for Judgment of December 6'h: It is clear that the privilege is absolute, not discretionary, and is set aside only when the innocence at stake exception is successfully invoked. The issue.1 have to wrestle with at this point is whether the privilege applies at all and how to determine that without violating the privilege. Most cases of the application of the privilege are crystal clear. For example, where the police rely on a confidential informant to obtain a search warrant. However, here the Crown is asking the Court to determine the issue of whether the privilege applies, and fiom the redacted notes that I have seen, what is involved is not readily apparent. Further information is necessary. [Reasons for Judgment dated December 6,2007 in Record, Vol. 1 at p. 8, emphasis added]

72. In her Reasons for Judgment of December 7th,2007, Madam Justice Bennett reiterated the fact that the case at bar involves a factual assessment which is significantly more involved than that which normally presents itself. Of course, complicating this assessment is the fact that there had already been over 200,000 -two hundred thousand - pages of disclosure to date. Bennett J. stated:

The defence takes exception to whether the informer privilege applies at all. If it does apply, then subject to any further argument on the innocence at stake question, that is the end of the matter and nothing will be disclosed. Indeed, defence counsel have indicated they are nbt interested in finding out who the informer is but are more interested in the circumstances in which the informer came to the police. I cannot say for certainty, but it does not appear that this informer is an informant known only to a single police officer who is his or her handler. In such situations, the informant's identity is jealously guarded by the handler. It appears that a number of police involved in this investigation are aware of the informer's identity, as are all of the lawyers hired as part of the Special Prosecutor's team.

I raise this not to suggest that there is a spectrum of informants who may have more or less protection. Clearly, once the privilege applies, it protects all informants, whether they be a king-pin drug lord, or a person who saw something that relates to a crime. The point I am trying to make is that it is not clear-cut in this case whether the privilege applies and this is apparent fiom the Crown's submission. It is a live issue when in most cases it is not. The Crown says it is not apparent fiom the documents, thus defence counsel who are far more familiar with the nuances of this case than I, given there are in excess of 200,000 pages of disclosure to date, may well have useful submissions to make on the issue of whether privilege applies. Or they may not. [Reasons of Dec. 7,2007 in Record, Vol. 1 at p. 30, emphasis added] The Issue of an Amicus

73. The appellant suggests that Madam Justice Bennett erred by not appointing an amicus curiae to assist her in the fact-fmding assessment [at par. 701. The appellant obviously accepts (indeed urges) that Justice Bennett ought to have done so. This submission, however, necessarily presupposes a state of affairs contrary to what the appellant argues constitutes the substantive law in this matter elsewherein its factum.

74. First, the appellant argues that the only persons, in any circumstances, to whom information should be divulged which may tend to identify a person on whose behalf a claim of informer privilege is advanced are those persons who owe "an unqualified legal duty" to protect and enforce the informer privilege. The appellant asserts that this duty devolves only upon "the police, Crown and courts" - and by 'courts' the appellant further specifies that this means "judges". [see par. 51, footnote 19, and par. 1131

75. This position is obviously incompatible with the fact that sheriffs, court recorders, court clerks, law clerks, secretarial staff, court Registry personnel and various other and sundry persons involved in the Court's processes, and whose "unqualified legal duty" is certainly not the same as that devolving on police, Crown, or judges, will, in many cases, also have access to this information.

76. More significantly, this submission also overlooks the fact that this Court has already specifically sanctioned the use of amici curiae in 'first stage' evidentiaty hearings where information which could tend to identify a person on whose behalf the Crown is advancing a claim of informer privilege would be adduced. In such cases, the amicus is simply

"an attorney" who owes no special, let alone unqualified, duty to that person.

77. Second, the appellant argues that court orders and undertakings are not an acceptable method of protecting an informer's identity. However, if, as the appellant suggests, an amicus were to be appointed in this matter, since the amicus owes no "unqualified legal duty" to protect the privilege she would have to be bound by an undertaking or court order not in essence any different than those to which counsel for the accused in the case at bar have already agreed to be bound. The Respondent suggests that it is for this reason, rather than due to any typographical error (as the appellant suggests) that the Court in Named

Person said that the duty to keep an informer's identity confidential applies to the police, to the Crown, to attorneys, and to judges." Or, as stated in the French text, " L'obligation de garder secrkte ridentit6 des indicateurs est impos6e aux policiers, au ministkre public, aux avocats et aux juges .. ."

78. It should also be noted that, in the case at bar, there would be significant difficulties in utilizing the services of an amicus. First, since there are three accused, three separate amici would have to be appointed in order to avoid conflicts of interest. Second, in order for any amicus to make a meaninghl contribution, she would have to familiarize herself with the simply enormous amount of material involved in this matter. A lengthy delay in trial proceedings (months? longer?) would be inevitable. Did the courts below err in "departing" from Named Person?

79. The appellant says that the trial judge erred in departing from the procedure set out in

Named Person, and that the courts below erred in failing "to provide a legitimate basis"

for departing from the procedure set out in that case. The appellant further relies on the

cases of Ruby and Goodis in support of the proposition that in camera exparte hearings

should be accepted as de rigueur when claims of privilege are advanced.

80. In answer to these submissions, it should again be noted that in Named Person, the

Court itself, in setting out the procedure which the appellant says must be slavishly

followed, specifically limited itself to the circumstanies which existed in that particular

case, and specifically stated that in other circumstances, the recommended procedure might

have to be modified. In particular, the Court stated that it was attempting to set out a

procedure for the resolution of claims of informer privilege in the context of a criminal

trial. The Reasons of the Court are very clear on this point, and are set out as follows:

The range of situations in which the open court principle and informer privilege are in conflict is not easy to describe in the abstract. As noted earlier, informer privilege arises most often in the course of a criminal trial, when a Crown witness is asked on cross-examination about the source of some information which led to the trial. I do not thii it is necessary at this time to weigh in on the specific application of the open courts principle in such circumstances. .. . I think it is useful to describe the procedure to be followed bv a iudge in a case of informer privilege such as the one before the Court. The procedure described below, although informed by the particular facts of this case, will nonetheless provide guidance in all cases where a question of informer privilege arises; other circumstances may of course require the court to modify this approach accordmglv.

Named Person, supra, at par. 44 [all emphasis added] 8 1. Neither Ruby nor Goodis are authority for the proposition advanced by the appellant, that an in camera exparte hearing is always required in a criminal trial where a claim of informer privilege is advanced. Nor was Madam Justice Bennett ignorant of these decisions. In fact, in her reasons for Judgment of December 6th,2007, she specifically referred to both of these decisions as cases where courts have approved of exparte hearings when considering privilege issues. [Reasons, in Record, Vol. 1 at pp. 9-10]

82. Ruby involved a request for access to information under the Privacy Act, which mandated that the entirety of a hearing where a government organization invoked the

"foreign confidences" or 'tnational security" exceptions to refuse disclosure, had to be held in camera, and the trial judge had to allow counsel for the government to make exparte submissions. The appellant challenged the constitutionality of the relevant sections of the

Act, but did not challenge the government's right to refuse to disclose information on the basis of the exceptions in issue.

83. In the result, the Court held that the mandatory in camera provision was overbroad, unconstitutional, and could not be saved by section 1 of the Charter. However, the Court found that as the appellant had not challenged the government's right to refuse to disclose the information sought, the section of the Act requiring the judge to hear submissions ex parte with respect to this information was not unconstitutional. 84. Goodis was also a case where the appellant, a journalist, sought disclosure of government records, this time pursuant to the Ontario Access Act. The relevant Ministry objected to disclosure, on grounds that the records were subject to solicitor-client privilege

The records were ordered disclosed to counsel for the requester, subject to an appropriate confidentiality undertaking. This Court held that as the requester had not shown that disclosure of the records was an "absolute necessity", the order allowing counsel access to the records ought not to have been made. The Court, however, specifically left open the possibility that disclosure of this type of information (subject to appropriate confidentiality orders) might, in some cases, be appropriate in order to facilitate argument by the requester's counsel on the question of whether privilege is properly claimed. [see par. 211

85. As noted by the trial judge in the case at bar, neither of the decisions in these cases was made in the'context of an ongoing criminal trial. The Court in Ruby specifically held that the requester's rights as guaranteed by section 7 of the Charter were not involved, and no constitutional ,or fair trial rights were even considered in Goodis. Neither decision ever purported to decide the issue of a trial judge's discretion to refuse to order an exparte hearing in an application under s.37 in the context of a criminal trial matter. In such cases, as in Meuckon and Pilotte, courts have specifically recognized this discretion.

86. The appellant also says that by "departing" from Named Person, the decision of the trial judge in the case at bar reflects a number of "serious flaws" or pitfalls". With respect, many of these so-called "flaws" are simply the result of the apvellant's characterization of the trial judge's comments, and are without merit. To address them briefly: 87. The appellant says that the trial judge somehow erred by commenting that the Crown had not, despite repeated suggestions, provided affidavit evidence in support of its application. The appellant, however, does not say that this is untrue. Nor does the comment reflect any error. Bennett J. was simply explaining, in preparatory remarks, why she was being asked to rule on the application at all - she was doing so because the Crown chose to proceed in a manner that required her to do so.

88. The appellant complains that the trial judge noted she had not been told if the alleged informer t'came to the police in confidence." Again, this is true, and again, it is simply part of the trial judge's remarks in setting the context for the issue at bar.

89. With respect to the issue of the vetting codes, and whether this suggests that "at some point this privilege was not a concern",

A list of vetting codes was provided to the Coun -of Appeal, without objection, which showed what the other vetting codes used meant.

90. The appellant complains about the statement that "I cannot say for certainty, but it does not appear that this informer is an informant known only to a single police officer who is his handler", and says this is speculation. The appellant complains, similarly, about the statement that "it appears that a number of police involved in this investigation are aware of the informer's identity, as are all of the lawyers hired as part of the Special Prosecutor's 34 team", again says this is speculation, and says that the comment should not have appeared in public Reasons for Judgment.

91. It is clear from the documents themselves that there are notebook excerpts and continuation reports prepared by six different police officers, all of which have redacted passages over which privilege is claimed. The Crown claims informer privilege over all of this material, so it is a logical inference that each of these police oficers is privy to information which would, or at least could, disclose the person's identity. With respect to counsel, the Special Prosecutor himself, in open court at the Court of Appeal, admitted that some, but not all, knew the persons' identity. More importantly, the trial judge herself clearly stated that these considerations were not central to the issue which she had to decide. Madam Justice Bennett stated that:

93. Finally, the appellant takes issue with the trial judge's statement that the existence of the privilege is "in issue", although if the existence of the privilege were not in issue, there would be no need for a hearing at all. It is precisely because privilege is in issue that the trial judge permitted counsel for the Respondents to be present at the evidentiary hearing, both to protect their clients' rights and to assist the trial judge in her factual assessment. 35

PART IV :SUBMISSIONS ON COSTS

94. The Respondent makes no submissions on costs.

PART V - NATURE OF ORDER SOUGHT

95. The Respondent seeks an order dismissing the appeal.

All of Which is Respectfully Submitted

DATED at the Cityof Victoria, British Columbia, this' 10th day of March, 2009.

~evinG. McCullough '~ose~hJ. Blazina Counsel for the Respondent Counsel for the Respondent 36

PART VI -TABLE OF AUTHORITLES

Case Para Reference

Goodis v. Ontario, [2006] 2 S.C.R. 32 81, 84, 85

Named Person v. Vancouver Sun, 207 SCC 43

R. v. Fisk(1996), 108 C.C.C. (3d) 63 (B.C.C.A.) 6 1

R. v. H., [2004] A.C. 134 (H.L.) 55

R. v. Meuckon (1990), 57 C.C.C. (3d) 193 (B.C.C.A.) 48,85

R. v. Pilotte (2002), 163 C.C.C. (3d) 225 (Ont. C.A.) 45-49, 85

Ruby v. Canada (Solicitor General), [2002] 4 S.C.R. 3 44,81-83

Socialist Workers Party v. Attorney General, 564 F. 2d 19 (2d Cir. 1977) 60

United States. v. Anderson, 509 F. 2nd724 (9thCir. 1974)

United States v. Lopez, 328 F. Supp 1077 (1971)

United States v. Grisham, 748 F. 2d 460 (8thCir. 1984)

Unitedstates v. Savage, 969 F. Supp. 450 (1997)

Statutes

Canada Evidence Act, R.S. 1985c, C-5, ss. 37,37.21 and 37.3 51, 52, 62

PART VII - STATUTORY PROVISIONS

See Book of Authorities File Number: 32719

IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA)

BETWEEN:

REGINA AppellanVRespondent on Cross-appeal (Appellant)

and

UDHE SINGH (DAVE) BASI BOBBY SINGH VIRK ANEAL BASI

Respondents/Appellants on Cross-appeal (Respondents)

FACTUM OF THE APPELLANT VIRK ON CROSS-APPEAL (Pursuant to Rule 43 of the Rules of the Supreme Court of Canada) REDACTED COPY

Solicitors for the Appellant Ottawa Agent for the Appellant Bobby Singh Virk: . Bobby Singh Virk:

STATEMENT OF FACTS

Overview

1. The Respondents in this matter have been granted leave to cross-appeal with respect to the issue of whether the Court of Appeal had jurisdiction to hear the appeal brought by the

Crown appellant against the Ruling of Madam Justice Bennett made on December 7",

2007. The Respondent Virk says that Justice Bennett's Ruling did not result in an order for disclosure, the Crown appellant had no right of appeal to the Court of Appeal, and the

Court of Appeal had no jurisdiction to hear the appeal.

2. The right to an appeal, as provided for by the Evidence Act, is strictly limited by the provisions of the Act itself. Section 37.1(1) only provides a right to appeal from an order made under any of sections 37(4.1), (5), or (6). These sections, in turn, authorize a court

"with jurisdiction to compel the production of information" either to order the disclosure of that information, to order the disclosure of that information subject to conditions, or to make an order prohibiting the disclosure of that information. In the case at bar, there has been no order made under section 37(4.1), (5), or (6). Section 37.1 is simply inapplicable.

3. Justice Bennett's ruling that defence counsel could be present, on undertakings, at the start of the in camera hearing does not order the Crown to disclose anythmg. 4. The Crown is fiee to proceed in whatever manner it deems best in advancing its claim of privilege, but as the Court in ~ahedPerson made clear, that claim must be advanced on the basis of evidence, not simply submissions. During the course of the hearing, (which has not yet commenced) as evidence is advanced, there may well be objections taken to the disclosure of specific information. At this point, however, no witnesses have been sworn, no evidence has been adduced and no orders for disclosure have been made. In particular,

Bennett J. did not "compel the production" of any information. With respect, the Court of

Appeal was without jurisdiction to entertain the Crown appellant's appeal.

Proceedings Below

5. In addition to the Statement of Facts set out in the Crown Appellant's factum and in the

Respondent Virk's factum in reply, the following facts are relevant with respect to the cross-appeal in this matter:

6. In her Reasons for Judgment of December 6th,Justice Bennett stated, inter alia, that:

[13] It is clear that the privilege is absolute, not discretionary, and is set aside only when the innocence at stake exception is successfully invoked. The issue I have to wrestle with at this point is whether the privilege applies at all and how to determine that without violating the privilege.

[16] .. . In this case, all three accused have given their counsel instructions, as an alternative to their being present personally, to either consent to a court order or to enter into undertakings not to disclose any information heard in an in camera hearing that discloses any information regarding the identity of the informer if indeed anv of that information is, in fact. presented. [26] As will be seen shortly, there are reasons on which submissions may very well be required, not with respect to the balancing of issues, but whether or not a person is, in fact, a confidential informer. ...

[35] If s. 37 applies, it is constrained by the fact that there is no balancing of interests once the section applies if it is informer privilege.

[40] This is not to say that counsel will always be included in a hearing under s. 37 of the Canada Evidence Act. It depends on the circumstances. ... [Reasons in Record, Vol. 1, Tab 2, all emphasis added]

7. In her Reasons for Judgment of December 7", Bennett J. stated that:

[4] The Crown says that I am reviewing the exercise of its discretion to refuse disclosure of the subject documents. The Crown says that if I agree with the exercise of its discretion, the defence may still pursue the documents during the vetting applications set in January, 2008. ...

[7] This is not to say that there are never circumstances when the accused and his or her counsel need to be excluded. There may be. However, this is not one of them. I add that if it was not made clear in the earlier reasons, the accused have been excluded from the courtroom pursuant to s. 650(2) (b) of the Criminal Code. That is the effect of the ruling. However, in order to safeguard the right to make full answer and defence with respect to each of the accused, defence counsel are permitted to remain.

[IS] The defence takes exception to whether the informer privilege applies at all. If it does apply, then subiect to anv further argument on the innocence at stake question, that is the end of the matter and nothing will be disclosed. Indeed, defence counsel have indicated they are not interested in finding out who the informer is but are more interested in the circumstances in which the informer came to the police. [Reasons in Record, Vol. 1, at Tab 3; all emphasis added]

8. In the Court of Appeal, Madam Justice Ryan stated that: [Record, Vol. 1, Tab 41 [75] I am of the view that Madam Justice Bennett made an order authorizing disclosure under s. 37(4.1) of the Canada Evidence Act, R.S.C. 1985, c. C-5, and that the Crown's appeal is properly taken to this Court under s. 37.1(1) of the Act. I have concluded that the learned trial judge erred in permitting counsel for the respondents to be present during the hearing to determine informer privilege. For the reasons that follow, I would allow the appeal and set aside the order.

9. With respect to the issue of jurisdiction, Mr. Justice Donald stated:

[71] I fmd highly persuasive the arguments for interpreting the order as one contemplating disclosure in the course of deciding whether informer privilege arises. Those arguments are summarized at paragraphs 54 to 56 of the Chief Justice's reasons and I am not left in doubt by them. [emphasis added]

10. Chief Justice Finch found that there was no order compelling the disclosure of information over which the Crown asserted privilege, and stated:

[54] The argument is made that "the information" or "that information" referred to in those paragraphs [par. 16,30 and 32 of the Reasons of December 7"] could only refer to information that would tend to identify the confidential informer.

[55] The argument is advanced that if the trial judge did not intend by her order to allow defence counsel to hear information that might tend to identify the confidential informant, she would not have made the order for non-disclosure in the terms she did, nor would she have required undertakings of non-disclosure from defence counsel.

[56] Finally, reference is made to paragraph 23 of the reasons of 7 December 2007, where the trial judge expresses the view that the Crown has a right of appeal against her order.

[57] I see the force in this submission, but I am not convinced that it is entirely sound. The purpose of the in camera hearing is to determine whether there is a confidential informer, and if so whether he or she is protected by informer privilege. The judge observed in her reasons of 6 December 2007 that "here the Crown is asking the Court to determine the issue of whether the privilege applies, and from the redacted notes that I have seen, what is involved is not readily apparent. Further information is necessary'' @=a. 13).

[58] Similarly, in her reasons of 7December 2007 she said: [9] I have at this juncture been told no circumstances regarding how this person came to the police. I appreciate that even the most innocuous disclosure could breach the privilege. However, I have not even been told if the witness came to the police in confidence.

[lo] The Crown, in its application, refers to the exercise of Crown discretion; however, if the informer privilege applies, then the Crown has no discretion, (nor do I), so I am not particularly clear on this reference.

And further:

[19] The point I am trying to make is that it is not clear-cut in this case whether the privilege applies and that is apparent from the Crown's submission. It is a live issue when in most cases it is not. The Crown says it is not apparent from the documents, thus defence counsel who are far more familiar with the nuances of this case than I, given there are in excess of 200,000 pages of disclosure to date, may well have useful submissions to make on the issue of whether the privilege applies. Or they may not.

[59] In light of those unanswered questions, there is in my view considerable doubt as to whether the order of 7 December 2007 can be characterized as an order for disclosure.

[60] The defence position is that the purpose of the in camera hearing is to determine whether there is any basis on which informer privilege can be asserted. Counsel do not question the integrity of the Special Prosecutor's certificate. They say, however, that the certificate is not enough. They say there must be some evidence on which the judge could act before making an order for disclosure. Defence counsel say they are entitled to be present to test whether, in that evidence, there is any foundation to the claim for informer privilege. They say they can properly enquire into the circumstances in which the claim to informer privilege arose, the terms upon which it was granted, if it was, and the credibility of the witness called to justify the assertion of the privilege.

[61] It is also to be noted that unlike other cases under s. 37, this appeal is brought in advance of the judge's determination of the s. 37 application. I have difficulty accepting that the effect of the trial judge's order is to mandate the presence of defence counsel throughout the in camera hearing. As the defence has argued, the judge has not ruled that all evidence adduced on the in camera hearing must be disclosed to the defence: she has not ruled that defence counsel mav not be excluded at times during the in camera proceedings: she has not ruled that a witness must answer any particular question or questions. [62] On balance, I respectfully agree with the interpretation of defence counsel as to the nature and effect of the order pronounced on 7 December 2007. This order was made before the in camera hearing commenced. judge made clear that she did not have information that would permit her to anticipate what might occur, nor to make an order authorizing, or prohibiting, disclosure.

[63] The judge cannot be taken to have precluded herself fiom conducting some part of the in camera hearing exparte, if she considers that to be necessary. [Record, Vol. 1, Tab 4, par. as noted, all emphasis added]

12. Speaking in reply on June 1 lthat the hearing in the Court of Appeal on thismatter, Mr. Berardino elaborated on this issue by stating that:

Now, here - and we said this to the trial judge, and I'll give you the reference, because I've got it in my notes in just a moment, but here, when we went before the trial judge we never said to the trial judge that there wouldn't be a stage two. We never said to the trial judge that there wouldn't be disclosure of non-identifving information once the privilege is determined.

We - in fact we told the trial judge - we said to the trial judge there would be further - a further part of this, once we - we were able to identify the privilege, or the extent of the privilege, and so - and I'll - I have that reference in just a moment, and so the - the whole question of editing and coming back and forth is still very much open here, and there is no doubt, for example, that all of the information at the in camera hearing, that is to say all of the portions that are not identivmg, including the evidence that is not identifying, would necessarily be disclosed to defence counsel in stage two, and there could be argument about that. I - and we did - we did tell - we did identify this for the judge, that there would be a stage two. I don't think we had said so far as, you know, going through all the - all the information, but there's no doubt in my mind, absolutely, and I'll say it to this court and I wont retreat from it, all the information that would be at the in camera hearing that is not identifying is disclosable and subiect to argument at stage two. [Proceedings of June 1I", in Respondents' Record, at pp. 59-60, all emphasisadded]

PART I1

STATEMENT OF ISSUES

13. Did the Court of Appeal have jurisdiction to hear the appeal in this matter? PART 111

STATEMENT OF ARGUMENT

14. It is well established that appeals are creatures of statute, and in the absence of express statutory authority, courts of appeal do not have inherent jurisdiction to hear appeals in criminal matters. It has also long been settled that there should be no interlocutory appeals in criminal matters. Section 674 of the Criminal Code specifically prohibits appeals in respect of indictable offences unless they are authorized in the Criminal Code itself, and the Code does not authorize any interlocutory appeals in criminal matters.

15. When section 37 of the Canada Evidence Act is invoked to object to the disclosure of information, it gives rise to a separate and distinct proceeding from the trial itself. Sections

37(4.1), 37(5), and 37(6) of the Act, titled respectively "Disclosure Order", "Disclosure

Order", and "Prohibition Order", authorize the court hearing the objection to disclosure under s. 37 to order the disclosure of the information, to order the disclosure of the information subject to appropriate conditions, or to order the prohibition of the disclosure of the information in issue.

16. The Crown appellant in the case at bar relies on section 37.1 of the Evidence Act, which provides that: "An appeal lies from a determination under anv of subsections

37(4.1) to (6)" to the court of appeal of a province from a determination of a trial division or trial court of a superior court of the province. 17. Although section 37.1 refers to a "determination" made under ss. 37(4.1) through

37(6), rather than an "order" made under those sections, section 37(7) makes it abundantly clear'that a "determination" made under any of ss. 37(4.1) through 37(6) refers to a final decision, and accompanying order, for disclosure. The right of appeal provided for by s. 37.1 only exists once the court hearing an application under s. 37 has either specifically ordered the disclosure of the information, or made an order specifically prohibiting the disclosure of the information.

18. The right of appeal provided for by section 37.1 is a right of appeal from an order made under any of sections 37(4.1) through 37(6), an order which either orders disclosure or prohibits disclosure pursuant to the terms of those sections. In the case at bar, there is no such order. Justice Bennett has simply made a preliminary procedural ding that, in the particular circumstances of this application as they existed before her at the time of the ruling, counsel for the accused do not need to be excluded from the hearing. As recognized by Chief Justice Finch, however, this does not mean that Bennett J. has precluded herself from deciding that the hearing must proceed exparte at some point in the future.

19. While the Crown appellant argued that Justice Bennett's ruling amounted to an order under s. 37(5), Madam Justice Ryan found that it amounted to an order under s. 37(4.1).

The confusion is understandable. Nowhere in her Reasons for Judgment did Bennett J. ever purport to make an order for disclosure pursuant to either s. 37(4.1) or s. 37(5). These two sections are not even mentioned anywhere in the Reasons of December 7th. 20. The Crown appellant urged the Court below to view the ruling in question as a final determination of the procedure to be followed for the entirety of the future hearing. It was no such thing. Justice Bennett never ruled that all evidence adduced in the hearing must be disclosed to the defence, that counsel for the defence be present at all times during the in camera proceedings, or even that a witness answer any particular questions. All of these are issues which arise during the course of the hearing, and they will be decided, if they arise, at point in time.

21. The difference between the nature of the ruling in issue and an order for disclosure made pursuant to s. 37 (4.1) or (5) is reflected in the relationship between the former s. 37.21, which provided for the opportunity to make exparte submissions, and s. 37.1, which provides for a right of appeal from an order for disclosure.

22. Section 37.21 (2) of the Act, which was in effect from 2001 to 2004, provided the court hearing an objection to disclosure raised pursuant to s. 37 a statutory discretion to allow any person at the hearing to make exparte representations. (the section was repealed because it mandated in camera hearings) During the period of time in which s. 37.21 of the Act was in effect, s. 37.1 of the Act did provide for an appeal from a ruling made under s.

37.21. In other words, during the time when the Act s~ecificallyprovided for rulings allowing exparte proceedings, it did allow for appeals from such rulings - it only allowed for appeals from "determinations", or orders mandating disclosure or non- disclosure, made pursuant to ss. 37(4:1) through 37(6). 23. While s. 37.1 only provides for a right of appeal after a "determination" has been made under ss. 37(4.1) through 37(6), as a part of this appeal, the reviewing court is entitled to consider the propriety of the procedures followed by the trial judge during the course of the hearing. This review could, of course, include a consideration of whether or not the trial judge erred by failing to hold part or all of the proceedings exparte, but this does mean that there is an independent right of appeal from such a ding.

24. A good example of this type of situation can be found in R. v. Pearson, where on a

Crown appeal against an order to disclose documents over which it had claimed privilege, the Quebec Court of Appeal decided that there was no need for the hearing judge to have allowed exparte representations by the Crown.

R. v. Pearson (2002), 170 C.C.C. (3d) 549 at 566 (Que. C.A.)

25. Section 37(1) stipulates that an objection must be made to a court "with jurisdiction to compel the production of information." The Crown can not claim that Madam Justice

Bennett's ruling "compels" or orders it to do anything. No evidence has been heard in the application as of yet. No witnesses have been sworn, no questions asked or answered. No affidavits, sealed or open, have been submitted. Although the Crown has indicated that it intends to call a witness on the hearing, it has not even said who this witness might be.

26. Madam Justice Bennett, at the time the application in this matter was made, was without jurisdiction to "compel" the disclosure of anythmg. How could she possibly have

"compelled" an unknown witness to testify? 27. The decision whether or not to call a witness to substantiate the claim for privilege in this matter was, and remains, completely within the Crown's control, as are all decisions with respect to how the Crown will proceed in this matter. As recognized by the Chief

Justice, however, the claim must be proved on evidence, rather than on bald assertions. If a certificate stipulating the objection were sufficient to dispose of the matter, then there would never be a need for any judicial enquiry, much less a hearing, on an objection to disclosure raised pursuant to s. 37 of the Evidence Act.

28. Two specific circumstances with respect to the application in the case at bar need to be kept firmly in mind. First, as was repeatedly noted by the trial judge, there is a complete evidentiri~yvacuum with respect to the Crown's claim for informer privilege. Second, and as was also noted, although defence counsel challenged the existence of that privilege, they did not seek to learn the identity of the person on whose behalf the privilege was claimed.

29. A characterization of Justice Bennett's ruling of December 7'h as an order to disclose an informer's identity to defence counsel is simply wrong. Madam Justice Bennett has ordered no such thing. Should the Crown decide to proceed by calling a police witness, objections to specific questions can be made at the appropriate time. It is unimaginable that all questions which would be put to the police witness would pose a direct threat to revealing the identity of the person the Crown claims to be a confidential informer. 30. The fact that the objection raised by the Crown in the case at bar, purportedly made pursuant to section 37 of the Evidence Act, is really an application to have defence counsel excluded fiom the hearing in its entirety, rather than an application to refuse to disclose specific information on the basis of informer privilege, is evidenced both by the oral and written certifications made by the Crown in this matter.

3 1. Crown counsel certified orally that ". .. it objects to the disclosure of information .. . because it is subject to informer privilege, and that the presence of defence counsel in the in camera hearing would violate" the informer privilege rule. pecord, Vol. 1, at p. 1761

In the written certification, the Special Prosecutor certified that "the Crown objects to the disclosure of certain information to defence counsel on the grounds that the information is subject to informer privilege and that the presence of defence counsel in an in camera hearing will violate that informer privilege and identify the informant." [Record, Vol. 1, Tab

8, at p. 139, emphasis added]

32. Two features of these certifications are particularly important. First, the Crown has never specified what, exactly, it objects to disclosing. Is it the redacted notes, either in part or in toto? Is it the testimony of the mystery witness, either in part or in toto? Is it something else? From the certification itself, there is absolutely no way of knowing.

33. Second, while it is clear from these certifications that the Crown does not want defence counsel in the hearing because it says their presence in the hearing will violate informer privilege, the Crown has never specified why, or at what point in the hearing, 01 with respect to what specific evidence, the presence of defence counsel will do so.

34. The objection raised by the Crown in this matter, as evidenced by the specifics of the certifications made in support of that objection, is not so much an objection to the disclosure of certain (unspecified) information, but an objection - based on the position of

Crown counsel which has been repeatedly, clearly and explicitly expressed on numerous occasions, including in the proceedings before this Honourable Court - that defence counsel should abe allowed to participate in a hearing to decide a claim of informer privilege atall,under any circumstances.

35. The Special Prosecutor has never certified (for good reason) that every single bit of information or evidence which would be heard in order to determine whether informer privilege applies would also necessarily identify, or tend to indentify, the person for whom the privilege is claimed. Such a claim would be simply untenable. Reductio ad absurdurn, this would mean that a police witness could not even be asked his name, his rank, his years of service, or his current job title without divulging the alleged informer's identity.

36. Moreover, Crown cohsel, both atthe hearing in front of Madam Justice Bennett, and in proceedings at the Court of Appeal, have specifically acknowledgedthat there very well may be information in the redacted notes themselves which could be disclosed to defence counsel without infringing the claim of informer privilege. 37. In essence, Crown counsel has taken the position that the decision in Named Person

mandates the automatic exclusion of defence counsel from a hearing held to determine

whether a claim of informer privilege can be substantiated, and has framed their

certification under s. 37 of the Evidence Act accordingly. In other words, the Special

Prosecutor has applied to have the entire hearing conducted in the absence of defence

counsel, without regard for the fact that an objection under s. 37 can only properly be

lodged with respect to the disclosure of that specific information which in itself may tend

to breach a claimed privilege.

38. With respect, the appellant Virk says that the special prosecutor asked for a carte

blanche from the trial judge, to exclude counsel for the defence from the hearing ab initio,

not because all of the evidence presented at that hearing would have identified a potential

informer, but because of the prosecutor's view that no defence counsel, anywhere, anytime,

should ever be present in such a hearing.

39. In her ruling, Madam Justice Bennett simply refused to accede to this proposition. She

did not purport to order or compel the prosecutor to disclose any information which could

identify that person, and she did not bind herself from making any future orders which she

, ' believed necessary in order to protect that privilege. She simply disagreed that counsel for

the accused must automatically be excluded from such a hearing. Her ruling decides a

preliminary procedural issue, and does not constitute an order for disclosure of any sort.

The Court of Appeal did not have, and this Court does not'have, jurisdiction to intervene. PART IV - SUBMISSIONS ON COSTS

40. The Appellant on cross-appeal makes no submissions on costs.

PART V - NATURE OF ORDER SOUGHT

41. The Appellant on cross-appeal seeks an order allowing the cross-appeal, and dismissing the Crown Respondent's appeal for lack of jurisdiction.

All of.Which is Respectfully Submitted

DATED at the City of Victoria, British Columbia, this 10th day of March, 2009.

Kevin G. McCullough Counsel for the Appellant Counsel for the Appellant PART VI -TABLE OF AUTHORITIES

Case Para Reference

Named Person v. Vancouver Sun, 207 SCC 43

R. v. Pearson (2002), 170 C.C.C. (3d) 549 (Que. C.A.)

Statutes

Canada Evidence Act, R.S. 1985c, C-5, ss. 37,37.1 and 37.21

PART VII - STATUTORY PROVISIONS

See Book of Authorities