REDACTED Court File No. 33727 SUPREME COURT OF CANADA (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on Publication: By Court Order, information that may identify the person described in this judgment as the informer may not be published, broadcast, or transmitted in any manner.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 Calgary, 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 Edmonton, 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 Canadians, 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.