R. v. Khela, [1995] 4 S.C.R. 201
Santokh Singh Khela and Kashmir Singh Dhillon Appellants
v.
Her Majesty The Queen Respondent
Indexed as: R. v. Khela
File No.: 24265.
1995: May 24; 1995: November 16.
Present: La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, Iacobucci and Major JJ.
on appeal from the court of appeal for quebec
Criminal law ‑‑ Evidence ‑‑ Crown's obligation to make disclosure to defence ‑‑ Crown ordered on appeal to disclose information as to the evidence to be given by police informer, to give his name and whereabouts and to provide opportunity to examine him ‑‑ Disclosure to be made before second trial ‑‑ Examination aborted owing to doubts as to identity of hooded witness ‑‑ Other information not disclosed ‑‑ Stay granted at opening of new trial because of lack of disclosure and undue delay ‑‑ Stay quashed on appeal and new trial ordered ‑‑ Disclosure principles to be applied.
Appellants at trial tried unsuccessfully to subpoena Billy Joe, a police informer (but not a police officer), who was key to the defence theory but the trial judge ruled that his name was privileged. The Court of Appeal ordered that a new trial be held and that the Crown disclose the evidence of the informer before the trial, give his full name and whereabouts and provide an opportunity to examine him before the new trial. Appellants' counsel sought to interview Billy Joe before the second trial and were informed by the Crown that the questioning would be limited to specific matters described in the Court of Appeal's decision, that the interview could not be taped and that a court reporter could not be present. Appellants aborted the interview because they doubted the identity of the hooded man protected by private bodyguards who was presented at the interview. The Crown did not provide the defence with the name, address or any identifying features of Billy Joe and made no disclosure of Billy Joe's proposed testimony but the Crown did provide a copy of Billy Joe's criminal record which had been censored in order to disguise his identity. At the opening of the second trial, and before the jury was chosen, the appellants successfully applied for a judicial stay of proceedings, pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms, on the grounds that the Crown had failed to disclose essential and relevant evidence and that the Crown had violated the appellants' rights to be tried within a reasonable time. The Crown appealed and the stay was quashed and a new trial ordered on the original charges. The trial judge at that new trial was to rule on the extent and timing of disclosure in relation to Billy Joe's evidence. This appeal arose as of right on a question of law alone as the Court of Appeal decision had reversed an acquittal (the stay). At issue is the proper application of the principles set out in R. v. Stinchcombe involving disclosure of the identity of the Crown informant.
Held (L'Heureux-Dubé J. dissenting): The appeal should be allowed.
Per Sopinka, La Forest, Gonthier, Cory, Iacobucci and Major JJ.: The appeal based on non‑compliance with the Court of Appeal (No. 1) disclosure order should be allowed. The ground based on unreasonable delay, however, failed for the reasons given by Baudouin J.A. in the second appeal.
The issue of privilege, since it was decided by the Court of Appeal (No. 1), was not open to the Court of Appeal (No. 2) and was not open to the Crown in this appeal. Where new evidence which may warrant a change in the terms of the Crown's obligation to disclose comes into the possession of the Crown, the appropriate procedure is an application to the trial judge to vary. The trial judge has a discretion to vary an order for disclosure on the basis of evidence which establishes that the factual foundation upon which the order was based has changed. Such an application should be made at the earliest opportunity. Difficulties in compliance with disclosure orders should be resolved by application to vary disclosure obligations rather than by non‑compliance followed by an attempt at ex post facto justification on the basis of alleged new circumstances.
No appeal was taken from the judgment of the Court of Appeal (No. 1) and no proceedings were brought before the trial judge to vary it. Accordingly, it was binding in accordance with its terms and could not be collaterally attacked. No application was made in this Court to adduce fresh evidence respecting the possible jeopardy to Billy Joe's safety and no application was made to second trial judge to vary the terms of disclosure based on this evidence.
The judgment in Court of Appeal (No. 1) was sufficiently precise to describe the extent and timing of the disclosure obligation of the Crown in relation to Billy Joe. Although only Billy Joe's evidence was explicitly required to be disclosed "before trial", it was implicit from other portions of the judgment that the timing as to disclosure of the other two requirements was also to be "before trial". Identity and whereabouts are material to the ability of the defence to make full answer and defence and therefore had to be disclosed prior to trial. Although the Crown had some discretion as to exactly when disclosure would be made prior to trial, such disclosure had to be within sufficient time to enable the appellants to make full answer and defence.
The Crown's discretion with respect to the timing of disclosure existed before judicial review of the exercise of that discretion. It did not continue after its exercise was reviewed by the Court of Appeal (No. 1) and a ruling was made. Otherwise, this would permit the Crown to disregard a judicial determination that disclosure has to be made and that information is not subject to informer privilege.
The Crown totally failed to make full disclosure prior to trial in relation to Billy Joe as required by Court of Appeal (No. 1)'s decision. The Crown did not provide (1) will‑say or statements of the informer prior to trial, (2) Billy Joe's full, real name, and his whereabouts, or (3) suitable conditions to interview him. The circumstances of the interview, however, were dictated by the informant Billy Joe and not by the Crown. Where there is intervening non‑disclosure by the informant, the lack of cooperation could not be attributed vicariously to the Crown. The conditions under which the Crown made the informant available (hooded and with two bodyguards and with no chance to record the interview), however, were so constrained as to amount to less than full disclosure. Defence counsel could not be faulted for not conducting an interview of the person presented when his identity was legitimately in doubt.
Failure to comply with the obligation to disclose by the Crown could impair the right of the accused to make full answer and defence in breach of s. 7 of the Charter. The terms of disclosure accord with the decision in Stinchcombe except that in ordering that the informant be made available the judgment is an extension of obligation resting on the Crown. The obligation of the Crown does not extend to producing its witnesses for oral discovery. Crown witnesses, even informants, are not the property of the Crown whom the Crown can control and produce for examination by the defence. Nevertheless, subject to variation by appropriate proceedings, the Court of Appeal (No. 1)'s judgment was binding on the Crown. The matter could not be remitted to the trial judge to determine de novo the terms, content, and conditions of disclosure relating to Billy Joe.
It would not be appropriate to stay the proceedings without affording the Crown an opportunity to either comply with the terms of the judgment of the Court of Appeal (No. 1) or move to vary it on the basis of information that has come into its possession since the date of the judgment.
Per L'Heureux‑Dubé J. (dissenting): The disclosure "order" could not be implied from the terms of the judgment. The relevant portions of the judgment merely characterized the error made at trial in order to provide guidance to the trial judge for the new trial ordered. Absent a specific order by the court, such guidelines have never been regarded as binding on either the trial judge or the parties.
The Court of Appeal (No. 1) remitted the whole issue to the trial judge to be dealt with at the new trial in a manner consistent with its decision. Given the appellants' contention, and perhaps the Crown's perception, that the Court of Appeal (No. 1) had made an "order" that the Crown had to obey, steps were taken by the Crown to comply with the demands of the defence inasmuch as the circumstances required to ensure the protection and security of the informer. As the Court of Appeal (No. 2) held, however, the judgment of the Court of Appeal (No. 1) was not binding on either the trial judge or the parties as regards the content of disclosure and, as a consequence, it will be for the trial judge to reconsider this issue. Consequently, this issue was to be reconsidered by the trial judge in light of all relevant circumstances.
The matter of disclosure could have been dealt with in two ways at the second trial: either the Crown could have made an application to the trial judge to set conditions for further disclosure of information concerning the informer had such disclosure been found necessary, or the defence, if not satisfied by the extent of the disclosure, could have applied to the trial judge to order the Crown to disclose even further information regarding the same. In both cases, the need to protect the identity of the police informer and other circumstances related to the disclosure order would have been dealt with.
Had the judgment of the Court of Appeal (No. 1) been construed as an "order" to produce the police informer, it would have gone much beyond Stinchcombe. The Crown can only be ordered to produce what it has and it does not "have" people; the majority was agreed with in this respect.
The majority was also agreed with that no unreasonable delay occurred in the circumstances of this case.
A stay of proceedings should not have been granted but the Court of Appeal (No. 2)'s order of a new trial should be upheld and the question of the extent of disclosure should be directed to the trial judge.
Cases Cited
By Sopinka and Iacobucci JJ.
Referred to: R. v. Stinchcombe, [1991] 3 S.C.R. 326; R. v. Kalanj, [1989] 1 S.C.R. 1594.
By L'Heureux‑Dubé J. (dissenting)
R. v. Stinchcombe, [1991] 3 S.C.R. 326.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 7, 11(b), 24(1).
Criminal Code, R.S.C., 1985, c. C‑46, ss. 691(2)(a) [rep. & sub. S.C. 1991, c. 43, s. 9], 695(1).
APPEAL from a judgment of the Quebec Court of Appeal, [1994] 63 Q.A.C. 273, 92 C.C.C. (3d) 81, quashing a judgment and dismissing a request to stay proceedings on allowing an appeal from a judgment of Steinberg J., [1992] Q.J. No. 409, held following a judgment of the Court of Appeal (1991), 41 Q.A.C. 101, 68 C.C.C. (3d) 81, 9 C.R. (4th) 380, ordering a new trial on allowing an appeal from a judgment of Barrette‑Joncas J. Appeal allowed, L'Heureux‑Dubé J. dissenting.
David W. Gibbons, Q.C., for the appellant Santokh Singh Khela.
Clayton C. Ruby, for the appellant Kashmir Singh Dhillon.
Pierre Sauvé, for the respondent.
The judgment of La Forest, Sopinka, Gonthier, Cory, Iacobucci and Major JJ. was delivered by
1 Sopinka and Iacobucci JJ. -- This appeal concerns the application of the principles relating to Crown disclosure as set forth by this Court in R. v. Stinchcombe, [1991] 3 S.C.R. 326, in the peculiar circumstances of this case involving disclosure of the identity of a Crown informant.
I. Facts
2 The appellants, Khela and Dhillon, were charged in relation to a conspiracy in late May 1986 to commit murder of persons aboard an aircraft in the United States by placing a bomb on the plane. They were arrested and placed in custody on May 30, 1986, and have been in continuous custody since then. They pleaded not guilty and waived their right to a preliminary inquiry.
3 At their first trial, on December 23, 1986, the appellants were found guilty of all three counts of conspiracy by a jury but a conviction was only registered with respect to the first count. The appellants were sentenced to life imprisonment. During the trial, the appellants had twice tried unsuccessfully to subpoena a police informer, "Billy Joe" (who was not a police officer), to have his testimony heard. The trial judge refused, however, holding that the name of the informer was privileged. Billy Joe was a crucial contact person during the investigation of the appellants by the undercover police officers. The defence was that discussions had taken place between the appellant, Khela, and Billy Joe, and $8000 had been paid to Billy Joe to buy a stolen car, as part of a conspiracy between Billy Joe and Khela to import stolen vehicles into the United States. A total amount of $20,000 would be paid, and $8000 of this amount had already been paid to Billy Joe. The Crown's theory was that the money had been paid to have an airplane blown up.
4 The appellants' appeal (notice of appeal filed January 20, 1987) was allowed by the Court of Appeal (No. 1) ((1991), 68 C.C.C. (3d) 81) on September 9, 1991, and a new trial was ordered. Proulx J.A., writing for the court, held that the identity of the police informer was not privileged, should have been disclosed, and ordered a new trial. Proulx J.A. concluded as follows, at p. 93:
For these reasons, I am of the opinion that the trial judge erred in not ordering at the request of the appellants that the Crown disclose, (1) the evidence of the informer before the trial; (2) the full name and whereabouts of Billy Joe, and (3) that the Crown makes Billy Joe available to the appellants. [Emphasis added.]
5 Before the second trial, in February 1992, appellants' counsel sought to interview Billy Joe. They were informed by the Crown that he would be made available, but that questioning would be limited to the specific matters described in the Court of Appeal's decision (regarding payment of $8000, and meetings with the "explosives expert" and Khela), and that the interview could neither be taped nor could a court reporter be present. At the interview on February 27, 1992, at the Crown offices of the Montreal court house, they met a recalcitrant "Billy Joe" wearing a hood over his head and flanked by two large men (apparently bodyguards) who were identified only as not being police officers by the Crown who was present at the interview. "Billy Joe" refused to respond to questions in English, only speaking French, although at the first trial, evidence had established that Billy Joe was fluent in English. Defence counsel doubted Billy Joe's identity and the interview was aborted without any questions having been asked. The Crown also provided a copy of Billy Joe's criminal record with deletions of dates and places to disguise his identity. The Crown did not provide the defence with the name, address, or any other identifying features of Billy Joe, nor did the Crown provide disclosure of Billy Joe's proposed testimony.
6 At the opening of the second trial on March 10, 1992 ([1992] Q.J. No. 409) and before the jury was chosen, the appellants made two applications for a judicial stay of proceedings pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms on the grounds that:
(1)The Crown failed to disclose to the defence essential and relevant evidence as required by the judgment of the Court of Appeal; and
(2)The Crown violated the rights of the accused to be tried within a reasonable time . . . .
The evidence in support of these applications included two affidavits sworn by Dhillon's counsel, which included as exhibits a series of letters written by Crown and defence counsel regarding the history of the matter, and the nature and extent of disclosure made with respect to Billy Joe. The Crown submitted that it was not obliged to make disclosure of the name and whereabouts of Billy Joe or make him available because the judgment of the Court of Appeal did not contain a specific order.
7 Steinberg J. of the Superior Court held that the appellants' ss. 7 and 11(b) Charter rights had been infringed. He accordingly entered a stay of proceedings pursuant to s. 24(1) of the Charter, and ordered the release of the appellants. The Quebec Court of Appeal ((1994), 92 C.C.C. (3d) 81) allowed the Crown's subsequent appeal, quashed the stay of proceedings, and ordered a new trial on the original charges, at which new trial the trial judge would have to rule on the extent and timing of disclosure in relation to Billy Joe's evidence. This appeal thus reaches this Court as an appeal as of right, falling under s. 691(2)(a) of the Criminal Code, R.S.C., 1985, c. C-46, as an appeal on a question of law alone from a court of appeal decision reversing an acquittal (a stay being tantamount to an acquittal): R. v. Kalanj, [1989] 1 S.C.R. 1594.
II. Analysis
8 The order for a stay was supported on two grounds: unreasonable delay and Crown non-disclosure. With respect to the first ground we agree with Baudouin J.A. in the Court of Appeal that this ground fails.
9 The second ground relates to non-compliance with the decision of Proulx J.A. who wrote on behalf of the court. That decision preceded this Court's judgment in Stinchcombe, supra, but, subject to the reservation which we express later in these reasons with respect to the third requirement, the decision accords with principles expressed in Stinchcombe. No appeal was taken or sought to be taken from that judgment of the Court of Appeal nor were any proceedings brought before the trial judge to vary it. Accordingly, it was binding in accordance with its terms and cannot now be collaterally attacked.
10 In the Court of Appeal (No. 2) and in this Court, the Crown sought to reopen the issue of privilege relating to the identity of Billy Joe. Baudouin J.A. in his judgment apparently regarded all issues relating to disclosure, including the application of the judgment of Proulx J.A., as being open. The issue of privilege having been decided by the Court of Appeal (No. 1) was not open to the Court of Appeal (No. 2) and is not open to the Crown in this appeal. The Crown alluded to evidence that has come into its possession tending to show that the safety of Billy Joe is in jeopardy. It is not clear as to when this information came into the Crown's possession. The Crown referred to this information but no application was made in this Court to adduce fresh evidence and no application was made to Steinberg J. to vary the terms of disclosure based on this evidence. This is insufficient to warrant reopening the issue of privilege in this Court. Where new evidence which may warrant a change in the terms of the Crown's obligation to disclose comes into the possession of the Crown, the appropriate procedure is an application to the trial judge to vary. The trial judge has a discretion to vary an order for disclosure on the basis of evidence which establishes that the factual foundation upon which the order was based has changed. Such an application should be made at the earliest opportunity. Difficulties in compliance with disclosure orders should be resolved by application to vary disclosure obligations rather than by non-compliance followed by an attempt at ex post facto justification on the basis of alleged new circumstances.
11 The Court of Appeal (No. 2) also held that the record before Steinberg J. on the application prior to the second trial was clearly insufficient to determine whether the Crown had respected its disclosure obligations. Baudouin J.A. appears to have based this primarily on the confusion between Crown and defence counsel and held that the debate had never been resolved based on a full knowledge of the facts.
12 Resolution of this preliminary question as to the sufficiency of the record before Steinberg J. involves two questions:
(a)whether Proulx J.A.'s judgment in the Court of Appeal was sufficiently precise to describe the extent and timing of the disclosure obligation of the Crown in relation to Billy Joe; and
(b)whether the facts as to the extent of actual Crown disclosure in relation to Billy Joe were established at the pre-trial applications before Steinberg J.
13 Turning to the first question, Proulx J.A.'s judgment in the Court of Appeal (No. 1) held, at p. 92, that Billy Joe was "at the core of the theory of the defence". He was witness to material facts and an agent provocateur. Thus, he fell within recognized exceptions to privilege, mandating disclosure of his identity and of his communications. Proulx J.A., at p. 92, identified five issues central to the defence for which Billy Joe's potential evidence was relevant: "(1) the nature of the agreement; (2) the lack of agreement; (3) the lack of intent; (4) the issue of entrapment . . ., and (5) . . . credibility". Proulx J.A. concluded very clearly at p. 93 that there were three elements to the Crown disclosure relating to the informant, Billy Joe:
For these reasons, I am of the opinion that the trial judge erred in not ordering at the request of the appellants that the Crown disclose, (1) the evidence of the informer before the trial; (2) the full name and whereabouts of Billy Joe, and (3) that the Crown makes Billy Joe available to the appellants. [Emphasis added.]
As Steinberg J. noted on the application at the second trial:
. . . the opinion of Proulx, J., speaking on behalf of a unanimous Court of Appeal, is clear and unequivocal on this issue. The Crown had the obligation to provide the Defense, prior to the commencement of the trial, with the name and whereabouts of "Billy Joe", so that he could be summoned as a witness and to make him available. [Emphasis added.]
Accordingly, the extent of disclosure was made clear by Proulx J.A.'s reasons. The timing as to this disclosure is also made sufficiently clear. It is true that the first requirement of disclosure in Proulx's judgment refers to Billy Joe's evidence being disclosed "before trial", but the timing as to disclosure of the other two requirements is not stated. Yet, that the other two elements had to be done "before trial" is implicit from the other portions of Proulx J.A.'s reasons. Identity and whereabouts being material to the ability of the defence to make full answer and defence, they had to be disclosed prior to trial. Indeed, the Crown's attempt to make Billy Joe available at the aborted interview supports this view of the timing of disclosure in Proulx J.A.'s decision. This did, obviously, leave the Crown with some discretion as to the exact point disclosure was made prior to trial, but such disclosure had to be within sufficient time to enable the appellants to make full answer and defence.
14 The Crown's discretion with respect to the timing of disclosure, however, exists before judicial review of the exercise of that discretion. Crown discretion did not continue after its exercise was reviewed by the Court of Appeal (No. 1) and a ruling was made. Otherwise, this would permit the Crown to disregard a judicial determination that disclosure has to be made and that information is not subject to informer privilege. Accordingly, the Court of Appeal (No. 2), with respect, erred in finding that the Crown's discretion as to timing and extent of disclosure continued to exist.
15 With respect to the second aspect of the alleged inadequacy of the factual record before Steinberg J., in our opinion it was sufficient to determine whether the Crown had met its disclosure obligations. That factual record consisted of counsel submissions on the extent of actual disclosure, and an affidavit by one of the defence counsel, Louis Pasquin (counsel for Dhillon), containing exhibits of disclosure correspondence between Crown and defence counsel. The Crown itself admitted in this Court that much of the evidence before Steinberg J. was adduced by consent, without reference to the strict rules of evidence. During the Crown's argument on the application, Steinberg J. noted the reliability of the evidence as follows and implied that credibility was not in issue:
. . . I have three attorneys, three reputable attorneys who have informed me of what happened at this meeting. They substantially agree on what happened, there's no point in asking them what didn't happen. [Emphasis added.]
16 The record for each of the elements of Proulx J.A.'s disclosure order was as follows:
(a)It was uncontested that since the first Quebec Court of Appeal judgment, the Crown had not disclosed any additional information about the evidence of Billy Joe.
(b)It was undisputed that the Crown had never divulged this information nor was it willing to do so.
(c)It was uncontested that the only access that appellant's counsel had to Billy Joe was the opportunity to ask circumscribed questions without the benefit of a court reporter or recording device while Billy Joe was masked and surrounded by two non-police bodyguards.
In our view, the record established adequate facts to determine whether there had been disclosure in accordance with the judgment of the Court of Appeal (No. 1).
17 Based on the above-noted record, it is quite clear that the Crown totally failed to make full disclosure prior to trial in relation to Billy Joe as required by the three elements of Proulx J.A.'s decision. For the first element, the Crown provided no will-say or statements of the informer prior to trial. For the second element, the Crown did not provide Billy Joe's full, real name, and his whereabouts. The final element of Proulx J.A.'s order is the most problematic. This is because the circumstances of the interview may not have been so much dictated by the Crown, but rather by the informant, Billy Joe, himself. For this aspect of the disclosure, where there is intervening non-disclosure by the informant, it is difficult to attribute the lack of cooperation vicariously to the Crown. The conditions for the interview were apparently dictated by the informant himself. It is true that the conditions under which the Crown made the informant available to the defence were so constrained as to amount to less than full disclosure, i.e., hooded and with two bodyguards, and with no chance to record the interview. Defence counsel, owing to the hood, could not confirm that the individual presented as "Billy Joe" was truly the informer. Defence counsel cannot be faulted for not having conducted an interview of the hooded "Billy Joe" when they had legitimate concerns as to his true identity.
18 Failure to comply with the obligation to disclose by the Crown could impair the right of the accused to make full answer and defence in breach of s. 7 of the Charter. Steinberg J. directed a stay but relied, at least in part, on the ground of unreasonable delay which we find was in error. On the other hand, we find that the Crown is in breach of its obligation to disclose as determined by Proulx J.A. The terms of disclosure accord with the decision in Stinchcombe, supra, except that, in ordering that the informant be made available, the judgment is an extension of the obligation resting on the Crown. Crown witnesses, even informants, are not the property of the Crown whom the Crown can control and produce for examination by the defence. The obligation of the Crown does not extend to producing its witnesses for oral discovery. Nevertheless, subject to variation by appropriate proceedings, the judgment of Proulx J.A. was binding on the Crown, and the Court of Appeal (No. 2) erred in remitting the matter to the trial judge to determine de novo the terms, content and conditions of disclosure relating to Billy Joe.
19 In our view, in the circumstances referred to above, it would not be appropriate to stay the proceedings without affording the Crown an opportunity either to comply with the terms of the judgment of the Court of Appeal (No. 1) or to move to vary it on the basis of information that has come into the Crown's possession since the date of the judgment.
III. Disposition
20 In the result, we would allow the appeal and set aside the judgment of the Court of Appeal and substitute therefor an order setting aside the stay and requiring the trial to proceed on the following basis. Pursuant to the broad powers conferred on this Court by virtue of s. 695(1) of the Code, we issue the following directions:
Subject to variation by the trial judge on the basis of new evidence relating to the jeopardy of Billy Joe, the Crown must comply with the terms of the judgment of the Court of Appeal (No. 1). There is some difficulty, however, as we noted earlier in these reasons, with the third requirement in that disclosure order that Billy Joe be made available to defence counsel, since the informant appears reluctant to cooperate, and is beyond the Crown's control. Accordingly, the Crown has a choice:
(1)if the Crown wishes to avoid the problems already encountered in trying to comply with the third requirement, the Crown can meet its disclosure obligations by fully complying with the other two requirements, namely, disclosing the evidence of the informer before trial, and disclosing the full name and whereabouts of Billy Joe before trial;
(2)alternately, the Crown can choose to comply with the third requirement by producing Billy Joe and ensuring that he will cooperate and answer all proper questions.
21 The trial judge shall fix a reasonable time for compliance with the disclosure requirements referred to in the judgment of the Court of Appeal. At the end of that period, unless an application for variation has been brought, the trial judge shall determine whether the Crown has complied with its disclosure obligations. If there has been non-compliance, a stay is the appropriate remedy. The timing for the disposition of any motion to vary that may be brought by the Crown within the period fixed by the trial judge will be for the trial judge to determine.
The following are the reasons delivered by
22 L'Heureux-Dubé J. (dissenting) -- The issue raised by this appeal is whether the trial judge erred in ordering a stay of proceedings for reasons of unreasonable delay and non-disclosure of evidence and, consequently, whether the Court of Appeal was right in overturning that decision and ordering a new trial. More particularly, it must be determined whether the Crown properly fulfilled its disclosure obligations with respect to a police informer.
23 Although I agree with my colleagues that a stay of proceedings should not have been ordered in the case at hand, I base my conclusion on different premises. Further, contrary to my colleagues, I would uphold the judgment of the Court of Appeal. Before examining the issue before us, a brief chronology of events is in order.
I. Facts and Proceedings
24 On May 30, 1986, the appellants were arrested and charged with various counts of counselling and conspiracy to commit the murder of persons aboard an aircraft. The charges were based on several conversations between the appellants and a police informer known as "Billy Joe". While the crux of the case against the appellants lies in these conversations, their exact meaning is in dispute. The Crown argues that they are evidence of the alleged conspiracy to bomb an aircraft, while the appellants suggest that they relate to the stealing of an automobile.
25 After waiving their right to a preliminary inquiry, the appellants appeared before a judge and jury on November 24, 1986. They were tried on the conspiracy charges only, as the charges related to counselling were quashed. Both appellants were subsequently found guilty on all conspiracy charges. With the consent of counsel, the trial judge, Barrette-Joncas J., applied the rule against multiple convictions and registered a conviction only with respect to the first count. On January 28, 1987, both appellants were sentenced to life imprisonment.
26 The appellants appealed their verdicts. The main focus of the appeal concerned two disclosure applications that had been brought by the defence at the outset of the trial, and again before the trial came to an end. More particularly, the appellants had sought an order requiring the Crown to produce the informer in order that "Billy Joe", as well as the contents of his potential testimony, be made available to the defence. A similar request, prior to the trial, had been made directly to the Crown which had turned it down. In the end, both disclosure applications were dismissed by Barrette-Joncas J. on the grounds that the informer was protected by the police informer privilege.
27 On appeal ((1991), 68 C.C.C. (3d) 81), Proulx J.A., writing for a unanimous court on this point, found Barrette-Joncas J.'s ruling to be in error and ordered a new trial. In the course of his opinion, Proulx J.A. stated (at pp. 92-93):
With respect, I am of the opinion that the testimony of the informer was relevant to (1) the nature of the agreement; (2) the lack of agreement; (3) the lack of intent; (4) the issue of entrapment (under the existing law at the time), and (5) in relation to credibility.
. . .
In summary, the testimony of the informer could have provided evidence on some crucial facts, mainly, (1) the consideration of the payment of $8,000; (2) the purpose of the meetings before the meeting with Miele; (3) the nature of the conversation between Khela and himself before the meeting with Miele; (4) the discussion held at the restaurant with Miele; (5) the purpose of his contact with the appellants after Miele's departure from Montreal, and (6) the subject of the conversations held between the informer and the appellants after meeting Miele on May 22nd.
. . .
For these reasons, I am of the opinion that the trial judge erred in not ordering at the request of the appellants that the Crown disclose, (1) the evidence of the informer before the trial; (2) the full name and whereabouts of Billy Joe, and (3) that the Crown makes Billy Joe available to the appellants.
Herein lies the source of the confusion which subsequently arose in the proceedings that followed.
28 The appellants' new trial took place before Steinberg J. on March 10, 1992. On that date, the appellants brought two applications for a judicial stay of proceedings pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms. They argued that their s. 7 Charter rights had been infringed by the Crown's alleged failure to make full disclosure in accordance with the judgment of the Court of Appeal and that their s. 7 and 11(b) rights had been infringed by virtue of unreasonable delay.
29 On March 16, 1992, Steinberg J. allowed the Charter applications and entered a stay of proceedings. The Crown appealed. On June 27, 1994, the appeal was allowed ((1994), 92 C.C.C. (3d) 81), and a new trial was ordered. It is from this decision that the appellants appeal to this Court as of right.
II. Analysis
30 At the outset, it must be determined whether the judgment of the Court of Appeal in the first appeal in fact ordered the Crown to disclose (1) the evidence of the informer before the trial, (2) his full name and whereabouts, and (3) make him available to the defence. In this regard, the Court of Appeal's order simply reads as follows:
THE COURT, on an appeal against conviction for having conspired to commit the murder of persons aboard an aircraft, following a trial before judge and jury in the Superior Court (District of Montreal, December 23, 1986, the Honourable Madam Justice Claire Barrette-Joncas);
After study of the record, hearing of the parties by counsel, and deliberation;
For the reasons given in the written opinion of Mr. Justice Claude Vallerand, filed herewith, with which Madam Justice Christine Tourigny concurs, and for the reasons given by Mr. Justice Michel Proulx in his written opinion, also filed herewith;
DOTH GRANT the appeal;
DOTH ORDER a new trial. [Emphasis added.]
31 The question thus becomes whether a disclosure "order" can be implied from the terms of the judgment. In my view it cannot. What Proulx J.A.'s opinion, in its relevant portions reproduced earlier, did was to characterize the error that, in his view, the trial judge had made. Outlining such an error, as is regularly done by appellate courts in similar circumstances, is aimed at providing guidance to trial judges where new trials are ordered. Absent a specific order by the court, such guidelines have never been regarded as binding on either the trial judge or the parties. That no such order was even contemplated in this case is illustrated by the general comments made by Proulx J.A. in the course of his opinion. He alluded, in particular, to the possibility of the trial judge's ordering that the informer be called as a witness without his identity being disclosed (at pp. 93-94):
As a matter of fact, in some cases, trial judges have allowed witnesses to testify under assumed names in order that they not be obliged to divulge their true identity . . ., subject, of course, to the proper dispositions being taken for the security of the witness. Had the trial judge ruled in favour of the appellants to order the production of the informer as a witness, that order could have allowed the witness to testify under his assumed name.
32 Simply put, in the first appeal, the Court of Appeal remitted the whole issue to the trial judge to be dealt with at the new trial in a manner consistent with the court's decision, i.e., that disclosure be made to the defence but subject to the discretion of the trial judge as to the way in which this should be done. Given the appellants' contention, and perhaps the Crown's perception, that the Court of Appeal had made an "order" that the Crown had no choice but to obey, steps were taken by the Crown to comply with the demands of the defence to the greatest extent it considered possible under the circumstances which required it to ensure the protection and security of the informer, a matter Proulx J.A. had himself considered.
33 Before the second trial, the Crown thus backed away from its initial position taken during the first trial, i.e., that it had no disclosure obligation regarding the informer on the basis that this constituted privileged information, and accordingly provided the defence with all the information it had, other than the name and whereabouts of the informer. Moreover, although it had no direct control over "Billy Joe", the Crown stated that it was willing to do its best to see that the informer was present at the time of the new trial.
34 It must be stressed here that in the course of the first trial, considerable evidence concerning the informer had already been brought to the attention of the defence. This included details of the informer's twelve-year history in that capacity, details of the informer's past criminal record, as well as details of the deal that was made with him in exchange for the information. The Crown had also made available to the defence the police officer who had been the informer's contact throughout the investigation, and provided the defence with transcripts and audiotaped copies of the wiretapped conversations. Finally, it should be recalled that, at this stage, the informer had made no statement in relation to the alleged conspiracy charges other than the following at p. 87: "Of course, it's blowing up airplanes, and the reason I am ready to testify is because I think it's crazy to conspire to blow up airplanes and to kill hundreds of innocent people." This statement was made available to the defence.
35 On February 17, 1992, the Crown actually produced the informer, be it in such a way as to hide his identity. This was done in the context of a meeting at which counsel for both appellants, as well as counsel for the Crown, were present. The informer wore a hood in order to protect his identity, and he was accompanied by two bodyguards. By request of the informer, a court reporter was not to be present at the meeting, nor was the meeting to be tape-recorded. Counsel for the defence were told that the informer would answer questions directly related to the specific issues identified in Proulx J.A.'s opinion.
36 Although it was clear that, for reasons of security, neither the Crown nor the informer wanted the identity and whereabouts of the informer to be disclosed, the first and only question asked by defence counsel at the meeting was the informer's name. The informer refused to answer this question other than by giving his code name. Defence counsel then chose to put an end to the meeting without asking any further question, stating that they did not believe the hooded man was in fact the true informer, and persisted in their view that there had been insufficient disclosure, i.e., that the Crown had breached Proulx J.A.'s "order". This was the main basis of the appellants' application for a stay of proceedings at the second trial, an application which was granted by Steinberg J.
37 On appeal to the Court of Appeal from that stay, Baudouin J.A., writing for the court, discussed the meeting held between the Crown and the defence during which "Billy Joe" was produced (which I recounted earlier) in the following terms (at pp. 87-88):
[translation] If I correctly understand their argument, the respondents are complaining, in essence, that the Crown did not disclose to them the contents of what, when testifying at the trial, Billy Joe would say about the alleged conspiracy. Here, and with the greatest respect, we are, however, in total darkness, darkness which, it seems to me, would have been and should have been cleared up if the interview of February 17, 1992, had taken place normally and he had been questioned.
. . .
The Crown advances, secondly, its discretion and the rule as to the appropriate timing of the disclosure as laid down in R. v. Stinchcombe (1991), 68 C.C.C. (3d) 1, [1991] 3 S.C.R. 326, 9 C.R. (4th) 277 (S.C.C.). It argues that on February 17, 1992, disclosure of the name and whereabouts of Billy Joe was not proper for two main reasons. The first is that there was a real danger for the life of this individual who has already been the subject of a first attempted murder. The second is that he, represented by counsel, had indicated that he would ask, at trial, to testify under a pseudonym, which moreover Proulx J.A. permitted him to do in his judgment. The Crown's position is, therefore, that in these particular circumstances, it was for the trial judge, before the trial had actually begun, to make the necessary decisions in this regard. I agree with this position. [Emphasis added.]
38 In my view, Baudouin J.A. was absolutely right. The judgment of Proulx J.A. was not binding on either the trial judge or the parties as regards the content of disclosure and, as a consequence, it will be for the trial judge to reconsider this issue in light of all relevant circumstances.
39 I would add that there are two ways by which the matter of disclosure could have been dealt with at the second trial: either the Crown could have made an application to the trial judge to set conditions for further disclosure of information concerning the informer, had such disclosure been found necessary, or the defence, if not satisfied by the extent of the disclosure, could have applied to the trial judge to order the Crown to disclose even further information regarding the same.
40 In both cases, the matter would have been fully argued and, in particular, the need to protect the identity of the police informer, as well as any other circumstances which may have had a bearing on the requested disclosure order, would have been dealt with. The fact that the defence chose, rather, to move for a stay of proceedings does not give it greater rights than it could have claimed had it followed the proper route.
41 Moreover, assuming, for the sake of argument, that the Court of Appeal's judgment in the first trial could be construed as an "order" to produce the police informer, it is clear that such an order would have gone much beyond R. v. Stinchcombe, [1991] 3 S.C.R. 326, i.e., much beyond the type of disclosure that can be ordered by a trial judge, let alone a Court of Appeal. The Crown can only be ordered to produce what it has, and it does not "have" people. I agree with my colleagues in this respect that "[t]he obligation of the Crown does not extend to producing its witnesses for oral discovery" (at para. 18). The appellants' argument on this point must accordingly fail.
42 The other issue in dispute in the present appeal concerns the alleged unreasonable delay which the trial judge considered in ordering the stay of proceedings. I agree with my colleagues that no such unreasonable delay occurred in the circumstances of this case.
43 For these reasons, I agree with my colleagues that a stay of proceedings should not have been granted in the instant case. I would, however, uphold the Court of Appeal's order of a new trial and direct the question of the extent of disclosure to the trial judge. Accordingly, I would dismiss the appeal.
Appeal allowed, L'Heureux‑Dubé J. dissenting.
Solicitors for the appellant Santokh Singh Khela: Harrop, Phillips, Powell & Gibbons, Vancouver.
Solicitors for the appellant Kashmir Singh Dhillon: Ruby & Edwardh, Toronto.
Solicitor for the respondent: The Attorney General of Quebec, Montreal.