R v Brassington: Privilege Cannot Pierce Privilege

On July 20th 2018, the Supreme Court of Canada unanimously held that “although solicitor-client privilege provides a near-impenetrable shield for communications with counsel, it is not a sword that can be wielded to pierce informer privilege.” In other words, privilege cannot pierce privilege. Confident and well-constructed, Justice Abella’s decision for the Court in R v Brassington, 2018 SCC 37 serves to explicitly and unequivocally entrench informer privilege as a crucial form of protection for individuals who provide information to the police and, thereby, assist in the investigation of crime and the protection of the public.

Along with three other former police officers, Derek Brassington was charged with breach of trust, fraud, and obstruction of justice in connection with the treatment of a witness under police protection for a gang-related homicide investigation.[1] Once charged, the officers were instructed that they were prohibited from discussing details of the “investigations in a manner that might reveal the identity of confidential informers to anyone, including their legal counsel” (para 5).

The rationale for this restriction is the informer privilege rule: “a common law rule of long standing” that serves “to protect the identity of individuals who supply information to the police” (Brassington, para 35, quoting R v Durham Region Crime Stoppers Inc., 2017 SCC 45, para 1). As “[i]nformers play a critical role in law enforcement by providing information that is otherwise difficult or impossible to obtain,” informer privilege is an essential means through which the state helps to ensure that informers are kept safe and that others are encouraged to begin providing such information (para 35, quoting Durham, para 1).

Given informer privilege’s fundamental importance to the criminal justice system, the standard for piercing it is high (Brassington, para 36). Informer privilege can only be breached where “core issues going to the guilt of the accused are involved and there is a genuine risk of wrongful conviction” (R v McClure, 2001 SCC 47, para 47). In other words, unless the privileged information is the only means of raising a reasonable doubt as to the guilt of an accused individual, informer privilege is not to be infringed upon (Brassington, para 37). Aptly titled, the “innocence at stake” test is the only exception to informer privilege (Brassington, para 36).

Displeased with the restriction, the officers brought a pre-trial application “for a declaration that they could discuss information with their defence counsel that might reveal the identity of confidential informers” (Brassington, para 6). The officers did not, however, argue that the privileged information was essential to their innocence, but rather that they believed it “may be relevant to their defence” and that discussions with their counsel would allow them to determine “whether there is evidentiary value in the information” (Brassington, para 6). In other words, they did not make a standard application that aimed to meet the “innocence at stake” test. Rather, they argued for a new exception to informer privilege.

The application judge, Justice Wedge, was sympathetic to the argument and granted the application, holding that the officers could discuss any information in their possession with counsel. More specifically, she held that the disclosure was acceptable because solicitor-client privilege—which “protects from disclosure and compulsion the accused’s communications with counsel, subject to very narrow, limited exceptions” (Brassington, para 48)—and informer privilege could exist alongside one another. She held that “[w]hatever the client tells his or her lawyer is cloaked with privilege” and that, as a result, the privileged information “will remain imbued with that privilege unless and until [the officers] receive advice from their counsel that seeking disclosure of information pertaining to informers is necessary to raise a reasonable doubt as to their guilt” (Brassington, para 9). In other words, the officers (who already knew the privileged information as a result of their knowledge of the operations of the criminal investigation) could discuss the privileged information safely with counsel, as the information would be protected pursuant to their defence counsel’s legal and professional obligation to ensure that communications between themselves and their client would not be disclosed except where it was found to be essential for their client’s innocence.

At first glance, this position is appealing as it appears to allow for “unfettered communication” between client and counsel, while also offering protection to the informers except where the “innocence at stake” standard is met (Brassington, para 9). Further, in cases such as this, where the accused already have access to the privileged information, the ability of the accused to inform their counsel would help avoid any “strain” on their ability to speak freely with their counsel (Brassington, paras 43-44).

In her reasons and analysis, however, Justice Abella highlights a series of significant flaws in this proposed exception. To begin, the idea that informer privilege can be safely infringed due to the protections offered by solicitor-client privilege is “predicated on a misconception of the right to solicitor-client privilege, and of how it interacts with other legal obligations” (Brassington, para 48). The right to privacy in communications between one’s counsel cannot be equated with the right to discuss information that is otherwise privileged and not to be disclosed. Put differently, simply because two people agree that everything they say to one another will remain confidential, does not grant them license to share the secrets of others between themselves. A pact of secrecy does not also beget a pact of unfettered honesty.

On a more practical note, Justice Abella also outlines the proverbial pickle that allowing such an exception would create for defence counsel. First, in situations where defense counsel, but not the accused, are to be given permission to access the privileged information, they would be placed “in an awkward and professionally undesirable position” as they “would have to remain constantly on guard to never say or do anything, even inadvertently, that might tend to reveal the informant’s identity” (Brassington, para 42, quoting R v Basi, 2009 SCC 52, paras 45-46). Imposing such a restraint on defence counsel would lead not only to a breaking down of communication between counsel and client, but could also lead to a situation in which counsel “might feel bound to withdraw their representation, caught in a conflict between their duty to represent the best interests of their client and their duty to the court not to disclose or to act on” the privileged information (Brassington, para 42, quoting Basi, paras 45-46).

Second, and potentially even “more serious,” would be the consequences for defence counsel where their clients already knew the information (as was the case here). According to Justice Abella, lawyers caught in this predicament would be forced to struggle between, on the one hand, their duty to the client—which would “tell them to use the information”—and, on the other, their duty to respect informer privilege and remain silent (Brassington, para 44). For Justice Abella, these conflicting professional and legal duties are far less palatable than the “strain” that would be created where a client is aware of the privileged information but their lawyer is not. Quite plainly, for Justice Abella and the Supreme Court, defence counsel are “outside the ‘circle of privilege’” and may not have access to such privileged information except where innocence is at stake (Brassington, para 42).

Further, in the case of police officers (or any other individuals with access to privileged information as a result of their professional duties), it is not acceptable to disclose information obtained as a result of their exposure to criminal investigations. In this case, for instance, the fact that Brassington and his fellow officers happened to be aware of the privileged information is no justification for them receiving preferential treatment in dealing with their own legal issues. Greater access to information does not entitle one to exploit such information “for personal juridical gain” (Brassington, para 52).

Despite the force of the criticisms offered by Justice Abella, it seems that the Supreme Court’s overriding concern here is that, if informer privilege is to remain a foundational and robust form of protection for individuals who risk their personal safety in order to assist the police in the investigation of crime, it cannot be thrown asunder at the mere “speculative possibility that exculpatory information might be revealed” (Brassington, para 49). It is only through our law’s commitment to ensuring the integrity of fundamental principles—such as the notion that an informer’s trust is worth preserving—that those principles will bear fruit and result in a more peaceful and just society.

[1] The charges against the officers have not yet been proven.