Reveals split between judges, as majority sends case back for new
hearing.
In a decision that revealed a nasty split between justices, a majority of the Supreme Court of Canada chided Quebec provincial police for mishandling a confidential biker-club informant.
But two of the nine justices — Marshall Rothstein and Thomas Cromwell — stridently complained their colleagues got the facts wrong, ignored a “mountain of evidence” and offered hypothetical possibilities that had “no air of reality.”
This was not a subtle disagreement over some arcane legal principle — it was a take-no-prisoners judicial brawl.
Justice Rosalie Abella, who delivered the majority ruling Friday, said the snitch in this case had been working with more than one police department over several years.
A municipal force gave the man, known only as B, “informer” status, which has considerable legal implications.
But B went on to be arrested by the provincial police, who did not consider him an informer, but rather a source or a “co-operating witness.”
At an application hearing to clarify B’s status, a Quebec judge concluded the man was hoping to benefit from a financially rewarding co-operating-witness contract, lacked credibility and was not a confidential informant when he provided material to the Sûreté du Québec.
B was acting out of “obvious opportunism” by raising questions about his status, the judge added.
Nevertheless, Justice Abella said B “may have had reasonable grounds to believe that the protection promised by the first police force would continue with the ongoing flow of information that he was providing to the SQ.”
In the sharply worded dissent, Justice Cromwell accused her of losing sight of a fundamental point — “the analysis of the appeal in my view must take place in the context of the concrete realities of this case and within the proper limits of appellate review.
“Respectfully, my colleague’s analysis is directed toward hypothetical possibilities that are either contrary to clear findings by the application judge or have no air of reality on the record before the court.”
Justice Cromwell said an appellate court cannot reweigh evidence or draw conclusions the judge refused to infer, without some clear and determinative error.
“(It) is not open to this court on appeal to draw any inference from this record that B inquired whether or not he was a source and did not receive a straight answer,” he insisted.
“Such an inference is not only contrary to the evidence that the application judge accepted but it is also contrary to the judge’s express finding of fact that the SQ. did nothing that could have led B to believe that he would become a confidential police source … none of the officers involved failed to give B a straight answer about whether he was a confidential source because there were no such discussions and the very idea of B being or becoming a source never even crossed their minds.”
The justice went on to emphasize that the man gave a statement to the SQ. about his involvement in a crime, took officers to the scene and was warned from the outset that he would be held to account.
“It was therefore clear to B that those matters were not subject to any sort of confidentiality obligation,” Justice Cromwell added.
“B both wanted and expected to testify at future trials. In the circumstances here, as the application judge found, B could not possibly become a Crown witness and a confidential police informer with the SQ ….”
When he was formally charged and cautioned, he would have known that everything he said from that point on could be used as evidence in a court of law. Being treated in that fashion by the police is absolutely incompatible with any notion that it would have somehow led someone to believe that his or her identity as the purveyor of statements to them would be kept confidential.”
He reiterated the point: “There is no basis in fact to support the conclusion that B in fact believed that he was an informer. Quite the contrary.”
His pleas fell on deaf ears.
Justice Abella and the majority sent the case back for a new hearing about B’s status “in light of the nexus between the police forces.”
http://www.vancouversun.com/Mulgrew+Supreme+Court+disagreement+about+club+informant+results+judicial+brawl/8004873/story.html#ixzz2LghsLVFR
In a decision that revealed a nasty split between justices, a majority of the Supreme Court of Canada chided Quebec provincial police for mishandling a confidential biker-club informant.
But two of the nine justices — Marshall Rothstein and Thomas Cromwell — stridently complained their colleagues got the facts wrong, ignored a “mountain of evidence” and offered hypothetical possibilities that had “no air of reality.”
This was not a subtle disagreement over some arcane legal principle — it was a take-no-prisoners judicial brawl.
Justice Rosalie Abella, who delivered the majority ruling Friday, said the snitch in this case had been working with more than one police department over several years.
A municipal force gave the man, known only as B, “informer” status, which has considerable legal implications.
But B went on to be arrested by the provincial police, who did not consider him an informer, but rather a source or a “co-operating witness.”
At an application hearing to clarify B’s status, a Quebec judge concluded the man was hoping to benefit from a financially rewarding co-operating-witness contract, lacked credibility and was not a confidential informant when he provided material to the Sûreté du Québec.
B was acting out of “obvious opportunism” by raising questions about his status, the judge added.
Nevertheless, Justice Abella said B “may have had reasonable grounds to believe that the protection promised by the first police force would continue with the ongoing flow of information that he was providing to the SQ.”
In the sharply worded dissent, Justice Cromwell accused her of losing sight of a fundamental point — “the analysis of the appeal in my view must take place in the context of the concrete realities of this case and within the proper limits of appellate review.
“Respectfully, my colleague’s analysis is directed toward hypothetical possibilities that are either contrary to clear findings by the application judge or have no air of reality on the record before the court.”
Justice Cromwell said an appellate court cannot reweigh evidence or draw conclusions the judge refused to infer, without some clear and determinative error.
“(It) is not open to this court on appeal to draw any inference from this record that B inquired whether or not he was a source and did not receive a straight answer,” he insisted.
“Such an inference is not only contrary to the evidence that the application judge accepted but it is also contrary to the judge’s express finding of fact that the SQ. did nothing that could have led B to believe that he would become a confidential police source … none of the officers involved failed to give B a straight answer about whether he was a confidential source because there were no such discussions and the very idea of B being or becoming a source never even crossed their minds.”
The justice went on to emphasize that the man gave a statement to the SQ. about his involvement in a crime, took officers to the scene and was warned from the outset that he would be held to account.
“It was therefore clear to B that those matters were not subject to any sort of confidentiality obligation,” Justice Cromwell added.
“B both wanted and expected to testify at future trials. In the circumstances here, as the application judge found, B could not possibly become a Crown witness and a confidential police informer with the SQ ….”
When he was formally charged and cautioned, he would have known that everything he said from that point on could be used as evidence in a court of law. Being treated in that fashion by the police is absolutely incompatible with any notion that it would have somehow led someone to believe that his or her identity as the purveyor of statements to them would be kept confidential.”
He reiterated the point: “There is no basis in fact to support the conclusion that B in fact believed that he was an informer. Quite the contrary.”
His pleas fell on deaf ears.
Justice Abella and the majority sent the case back for a new hearing about B’s status “in light of the nexus between the police forces.”
http://www.vancouversun.com/Mulgrew+Supreme+Court+disagreement+about+club+informant+results+judicial+brawl/8004873/story.html#ixzz2LghsLVFR
