The Ontario Court of Appeal’s March 4, 2014 decision in R. v. Cook is an outstanding illustration of appellate criminal procedure regarding a production application where disclosure was sought to support a potential fresh evidence application.

The appellant, a former police officer, was convicted of various drug-related offences. While his appeal was pending, Crown counsel provided certain information to counsel for the appellant that had come into the possession of the police post-conviction. Included in this was an email which alleged serious misconduct against two police officers who the appellant had alleged had used him as a “stooge.” While the email was sent anonymously, the police were able to determine its author. The appellant thus brought an application for disclosure of the identity of the email’s author. The Crown argued that the identity of the person was protected by privilege either as a confidential informant or by way of public interest privilege.

The Court of Appeal appointed amicus curiae to interview the author and the Court held, in light of the interactions with the author, that “author has had extensive prior involvement with the police, has mental health issues and wants his or her identity protected” (para. 10).

The appellant submitted that the author may have information that would support an application to adduce fresh evidence on appeal – in particular, the author may have information about a prior relationship between the two impugned police officers, which would have undermined the finding of the trial judge that there was next to no prior relationship between the two officers. Usually, applications for production to support a potential application to adduce fresh evidence are governed by a two-stage process outlined by the Ontario Court of Appeal in the 2004 decision R. v. Trotta:

1.      The applicant must first demonstrate a connection between the request for production and the proposed fresh evidence application.  It must be shown that there is a reasonable possibility that production will assist the applicant in developing or obtaining information that will be admissible as fresh evidence.

2.      Next, the applicant must demonstrate that there is some reasonable possibility that the evidence to which the production request is linked may be received as fresh evidence on appeal.

The appellant submitted, however, that there was “no need to address the Trotta test for production, as privilege was the only reason that [the] Crown did not produce the information sought” (para. 11).

The Crown argued that the identity of the author was protected by privilege, meaning the accused needed to bring himself into the “innocence at stake” exception which was not engaged. In any event, the Crown argued that the court was required to apply the Trotta test for production and that the test was not satisfied here as the information could not have affected the verdict.

Benotto J.A., for a unanimous Court of Appeal, held that the information was not covered by informer privilege (there was no express or implied promise of anonymity coming from the police) or public interest privilege (there was no objective evidence to support the author’s safety concerns). She then held that it was premature to apply the Trotta test, and in so doing provided a comprehensive outline of how this issue is to be approached in the future:

[24]     In my view, it is premature to apply the Trotta test.  However, in light of the submissions, I will set out the Trotta analysis so that the parties will have a clear understanding of its parameters as the matter moves forward.

[25]     Were the Trotta test to apply, the application at this stage would not succeed. …

            [Benotto J.A. proceeded to explain how the evidence was of highly suspect credibility and in any event could not have affected the trial judge’s analysis.]

[30]     This would be the Trotta analysis as applied to the information currently available to the appellant and placed before this court.  It would, however, be premature to subject that information to the Trotta analysis.  Although framed as an application for production under s. 683, the real issue before the court was whether the author of the email was a confidential source.  The application was framed and argued as one that was preliminary to an application for production.  In my view, (and without intending any criticism of counsel who were in a rather unique situation,) the motion is more properly described as a motion for directions with respect to the scope of Crown disclosure.

[31]       The distinction between a motion for production and a motion for directions in respect of Crown disclosure may be difficult to draw.  It is probably impossible to draw a bright line between the two.  I think it is best to approach each case having regard to exactly what is sought by the appellant and its potential impact on the putative fresh evidence application.  Ultimately, the court is concerned both with allowing the appellant an opportunity to pursue realistic fresh evidence possibilities and with the hearing of appeals in a timely fashion.  The characterization of any particular motion brought in the context of a proposed fresh evidence application must, to some extent, be a reflection of how those twin purposes can best be served.   Here, the issue was a narrow one:  was the author’s identity confidential.

[32]       The Crown, quite rightly, disclosed the information received from the author and the results of the police investigation in redacted form.  In doing so the Crown was in no way conceding the relevance of any of the material to the appeal or its obligation to produce any related material should the appellant ultimately bring a production motion. The Crown, again quite rightly, redacted the information that could identify the informant pending a judicial determination of the privilege issue.  Clearly, the Crown had determined that having regard to its broad disclosure obligations, the substance of the information it had received should be disclosed.  The Crown did not argue Trotta on the application except in response to a specific inquiry by the court.  The Crown objected to disclosure of the identity of the author solely on the basis of privilege.

[33]       The Crown’s claim for privilege with respect to the redacted information cannot stand.  Since this was the basis for redacting the information produced, the redacted portions of the documents should now be provided, subject to the 5 areas relating to privacy issues that were identified during an in camera portion of the application.

Conclusion

[35]       The identity of the author of the emails is not covered by privilege. The Trotta analysis is premature. The Crown is to provide unredacted copies of the documents already produced, subject to the privacy issues discussed in camera.  Justice Doherty will case manage the matter with a view to a timely date for a hearing on the merits of the appeal.

[Emphasis added]