Surrey Six informers shielded in case against ex-Mounties
Court rules former cops charged in case cannot discuss confidential information
Four former Mounties criminally charged in connection with the 2007 Surrey Six murder investigation have been denied the right to talk about confidential informers involved in the case with their lawyers.
In a unanimous decision delivered by Justice Rosalie Abella Friday, the Supreme Court of Canada said the shield of confidentiality covering police informers can be pierced only if “innocence is at stake” and an accused is at risk of wrongful conviction.
“Police officers are, when accused of crimes, entitled to expect that they will be treated no less fairly than others who are accused and given the full protection of the law,” Abella said.
“What they are not entitled to expect is that they will be treated better. There is no reason to advantage police officers who, by virtue of their positions of trust, have information that has been confided to them for safekeeping.”
Ex-RCMP officers Derek Brassington, David Attew, Paul Johnston and Danny Michaud are charged with breach of trust, fraud and obstruction of justice in connection with a witness who, while not a confidential informer, was under their protection.
The decision overturns a 2015 ruling by the B.C. Supreme Court that they could discuss material that could disclose the identity of one or more of the roughly 80 confidential informers in the high-profile gang killings more than a decade ago.
Drug trafficker Corey Lal, his brother Michael, associates Ryan Bartolomeo and Eddie Narong, as well as bystanders Chris Mohan and Ed Schellenberg were executed Oct. 19, 2007, in a highrise apartment.
The long-standing informer privilege rule is considered fundamentally important to the criminal justice system and acts as a complete bar on the disclosure of the informer’s identity.
The police, the Crown and the courts are bound to uphold it unless it is a case where the defendant’s innocence is at stake — which the former officers did not argue.
Nor did they suggest any information relating to confidential informers was genuinely relevant to their defence.
“In their view, the Crown’s position would impose restrictions on the right to ‘unfettered communication’ between the accused and their lawyers, lawyers, moreover, who are bound by both solicitorclient privilege and informer privilege,” Abella said.
She disagreed with the argument:
“In effect, the police officers are inviting this Court to establish a new exception to informer privilege sourced in the right to solicitor-client privilege. I would, with respect, reject that invitation, not only because this Court has made clear that it will not create new ad hoc exceptions to informer privilege, but also because the police officers’ argument is predicated on a misconception of the right to solicitor-client privilege, and of how it interacts with other legal obligations (in this case, informer privilege) ... (A)lthough solicitorclient privilege provides a nearimpenetrable shield for communications with counsel, it is not a sword that can be wielded to pierce informer privilege.”
The ex-cops were to go to trial in 2013 but now are expected to be tried in January.