Toronto judge tosses ‘very serious’ charges after Crown identifies confidential informant 

The Superior Court of Justice in Toronto is seen in this photo on May 2, 2022. THE CANADIAN PRESS/Christopher Katsarov

A Toronto judge has dismissed charges against a person facing “a variety of very serious criminal offences,” telling the individual to immediately enter the Witness Protection Program after the Crown mistakenly disclosed that a relative had worked as a confidential informant.

In a decision released this month, Superior Court Justice Kenneth Campbell wrote that the accused had initially been set to stand trial on multiple “very serious” offences, details of which were not released.

“If the accused is convicted of these alleged offences, it seems entirely likely, for reasons I need not detail, that they will be sentenced to a very lengthy term of penitentiary imprisonment,” the judge wrote.

But in a pre-trial ruling, Campbell stayed all charges against the accused after disclosure materials provided to lawyers for other accused persons in the case revealed that a relative of the one accused had worked as a confidential informant in the past in order to get their family member out of jail.

When the Crown became aware of the “potential significance of what had been disclosed,” the materials were promptly returned, the decision read.

“However, there is no evidence as to what might have been done with these disclosure materials during the fairly lengthy period of time they were in the possession of defence counsel,” the judge wrote.

‘Fatal consequences’

The judge said immediately after the decision was made to stay charges against the accused, they were urged to enter the Witness Protection Program, along with the family member, to “avoid the potential fatal consequences” of the Crown’s disclosure.

“The accused appeared to accept this suggestion, and hopefully, by now, is well ensconced in the Witness Protection Program together with their family member,” Campbell wrote.

Campbell’s decision is deliberately vague in an effort to maintain the secrecy of confidential informants in the case, he said, noting that the proceedings were conducted “in camera” from “the very outset” and the courtroom was sealed. All exhibits are sealed, along with the audio and transcript record of the hearing.

No case number or lawyers are listed in the decision and the accused is referred to only as C.I.P. Gender-neutral language has also been used throughout the decision.

According to information in the decision, the accused “engaged in serious criminal activity for some time,” and admitted that they had made a living engaged in criminal activity.

Both the accused and their family member had been “carded confidential informants” to the police for some time, the judge said.

According to the decision, the accused had been able to “work off” pending criminal charges in the past, with the help of their family member, by offering police information about the criminal activity of others.

Charges against the accused would be “quietly concluded” once sufficient information had been provided to officers, the judge noted.

The disclosure documents provided by the Crown revealed that the family member of the accused told a third-party that they had gathered information about the criminal activities of others in the past in an effort to get the relative out of jail.

“The parties agree that, at a minimum, one logical inference that could be drawn from this disclosed information, is that the family member of the accused is a confidential informant for the police,” the judge wrote, noting that it is also possible that others may logically infer that the accused is a confidential information as well.

The judge noted that what was immediately apparent was that the accused and the relative were both in “grave danger.”

“The information disclosed by the Crown, to defence counsel (and, at least theoretically, to their respective clients), suggest that the family member of the accused is a confidential informant for the police, who has provided the police with information about the criminal activities of others, a number of times in the past,” the judge wrote.

Someone who may feel “personally aggrieved” by the informant’s activities may “seek to harm, or even kill” the family member or the accused, the judge added.

Strict confidentiality ‘critical’

Campbell went on to explain the importance of the “strict confidentiality,” something that has been “sacrosanct for centuries.”

“The privilege is critical to law enforcement efforts, as many criminal offences would be far more difficult to investigate if the police were unable to rely upon information confidentially provided to them by informants,” Campbell wrote.

“The privilege is also critical to informants themselves because without the police guarantee of confidentiality, there simply would be no police informants.”

Campbell said that by allowing the case to proceed to trial, the accused would be vulnerable to acts of revenge or “general violence” during the course of the public prosecution.

If the accused managed to “physically survive their trial,” the judge wrote, if convicted, they would be placed in an environment that “has a well-known aversion to confidential police informants.”

The judge noted that staying the charges is the only way to help prevent the accused from being subjected to violence or death.

“Canada is a country that has not had the ‘death penalty’ for many years,” Campbell said.

“That ultimate penalty simply cannot be permitted to return to Canada incidentally, as a way of punishing confidential police informants whose identity has been wrongly disclosed by the state – the very state that has forever promised to protect their confidentiality.”

He added that the accused and their family member are “now at great risk.”

“Their lives and safety have been seriously compromised – contrary to the guarantee that was earlier made by the state,” Campbell wrote.

“In my view, by the state’s unfortunate disclosure of information that could easily lead to the identification of a confidential informant, the state has forfeited its ability to fairly prosecute the accused for their alleged offences.”