COURT OF APPEAL FOR BRITISH COLUMBIA
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Citation: |
Named Persons v. Canada (Attorney General), |
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2025 BCCA 197 |
Date: 20250613
Docket: CA49238
Between:
Named Persons
Appellants/
Respondents on Cross Appeal
(Plaintiffs)
And
Attorney General of Canada
Respondent/
Appellant on Cross Appeal
(Defendant)
And
Attorney General of British Columbia
Intervener
SEALED FILE
Restriction on publication: Publication bans have been imposed pursuant to s. 486.5 of the Criminal Code of Canada, and pursuant to the inherent jurisdiction of the court, restricting the publication, broadcasting or transmission in any way of evidence that could identify victims, witnesses, undercover officers or witness protection members. These publication bans apply indefinitely unless otherwise ordered.
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Before: |
The Honourable Mr. Justice Willcock The Honourable Mr. Justice Abrioux The Honourable Madam Justice DeWitt-Van Oosten |
On appeal from: An order of the Supreme Court of
British Columbia, dated
June 27, 2023 (Named Persons v. Canada (Attorney General),
Vancouver Docket S2013431).
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Counsel for the Appellants/Respondents on Cross Appeal: |
H.M. MacDonald |
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Counsel for the Respondent/Appellant on Cross Appeal: |
B. Sokhansanj |
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Counsel for the Intervener: |
P.D. Ameerali, K.C. |
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Place and Date of Hearing |
Vancouver, British Columbia |
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Place and Date of Judgment: |
Vancouver, British Columbia June 13, 2025 |
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Written Reasons by: |
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The Honourable Mr. Justice Willcock |
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Concurred in by: |
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The Honourable Mr. Justice Abrioux |
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Summary:
This appeal arises out of the negligent disclosure by an agent of the Crown of information tending to identify a confidential informer. The trial judge awarded damages in negligence and under s. 24(1) of the Charter to remedy a breach of Named Persons’ s. 7 Charter rights. The appellants claim the judge (1) made inordinately low damage awards, (2) erred in finding they had failed to mitigate certain of their damages, and (3) erred in declining to award Charter damages for the purpose of deterrence and awarded damages insufficient for the purpose of vindication. On cross-appeal, the Attorney General argues the judge erred in finding a breach of the Named Persons’ s. 7 rights and awarding Charter damages. He also challenges the judge’s intended publication of the reasons for judgment, and the dismissal of his objection to publication under s. 37 of the Canada Evidence Act.
Held: Appeal dismissed; cross-appeal allowed.
The appeals of the assessment of non-pecuniary damages and the finding of a failure to mitigate damages are dismissed for reasons that are entirely redacted to preserve informer confidentiality.
In awarding Charter damages, the judge erred in law in finding the appellants’ s. 7 rights were infringed without identifying a specific principle of fundamental justice that was contravened. The requirement to identify such a principle is not restricted to cases impugning the constitutional validity of legislation; it functions as an important internal limit to the scope of s. 7 rights in general. However, a Charter damages award was not warranted because, while confidential informer privilege is arguably a principle of fundamental justice, tort damages in this case were sufficient to vindicate the appellants’ Charter rights. It is not necessary for this Court to decide whether informer privilege is a principle of fundamental justice. The Charter damages award is set aside.
The judge erred in finding the publication of his proposed redacted reasons would not tend to identify a confidential informer. No reasons from the trial decision will be published. A redacted version of the reasons on appeal will be released to identify the issues and, to the extent reasonably possible, explain the outcome.
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Table of Contents |
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[1] - [5] |
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[6] - [25] |
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[6] - [40] |
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[26] - [40] |
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[27] - [28] |
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[29] - [31] |
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[32] - [35] |
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[36] - [36] |
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[37] - [39] |
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[40] - [40] |
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[41] - [76] |
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[41] - [50] |
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[51] - [52] |
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[53] - [54] |
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[55] - [58] |
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[59] - [61] |
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[62] - [76] |
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[77] - [99] |
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[77] - [83] |
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[84] - [99] |
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[84] - [95] |
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[96] - [99] |
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[100] - [171] |
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[100] - [106] |
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[107] - [171] |
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[112] - [133] |
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[134] - [140] |
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[141] - [153] |
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[154] - [155] |
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[156] - [171] |
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[172] - [172] |
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[173] - [198] |
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[174] - [177] |
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[178] - [180] |
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[181] - [198] |
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[199] - [201] |
Reasons for Judgment of the Honourable Justice Willcock:
[1] Named Persons appeal an award made in negligence against the Crown arising from the disclosure of information tending to identify a confidential informer. The appeal of the award for non-pecuniary damages, founded upon the submission that the trial judge misapprehended or gave insufficient weight to certain evidence, is dismissed, for reasons given at paras. 6–76.
[2] The trial judge found some damages might have been avoided by steps in mitigation. The appeal founded upon the argument that he erred in law in doing so is also dismissed for reasons given at paras. 77–99.
[3] The trial judge found the Attorney General of Canada (“Attorney General”) had breached the Named Persons’ s. 7 Charter rights and awarded Charter damages for vindication under s. 24(1). That award is set aside for reasons given at paras. 100–172.
[4] The Attorney General also appeals an order dismissing his objection under s. 37 of the Canada Evidence Act, R.S.C., 1985, c. C-5, to publication of the trial reasons and authorizing their publication under ss. 37(4.1) and 37(5) of the Act. No reasons from the trial decision will be published for the reasons given at paras. 173–198.
[5] These reasons on appeal have been signed, sealed, and will be published with redactions following the process described in Appendix A.
[6] [Paragraphs 6–76 entirely redacted to preserve informer confidentiality].
[7] [Redacted]
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[77] [Paragraphs 77–99 entirely redacted to preserve informer confidentiality.]
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[100] The trial judge described his approach to the Named Persons’ claim to Charter damages as follows:
[672] The plaintiffs contended that this is an instance where Charter damages may be required, in addition to compensatory damages in negligence, in order to fulfill the functions of vindication and deterrence. However, they acknowledged that it is possible that these functions may be adequately addressed under tort principles, by way of a significant award of non-pecuniary damages, aggravated damages, and punitive damages. Given my findings above [apparently referring to the preceding paragraphs (667–8) in which he concluded the disclosure was not caused maliciously or intentionally, and was not caused by a systemic failure or a reckless disregard for confidential informers and therefore neither aggravated nor punitive damages were warranted], I prefer to address vindication and deterrence under the Charter damages framework.
[101] He found the disclosure to have increased the Named Persons’ risk of death and to have caused them to fear for their lives. He had no difficulty finding that state conduct had deprived the Named Persons of their right to life and of their right to security of the person. Section 7 was therefore engaged.
[102] Having found there to be a deprivation of the right to life and security of the person, the judge considered it unnecessary to decide whether the Named Persons’ had been deprived of liberty and he declined to define the scope of liberty rights in this context. The Named Persons no longer assert a deprivation of their right to liberty.
[103] The judge then turned to the question whether the Named Persons had established the deprivation was a result of state conduct inconsistent with the principles of fundamental justice, the second part of the test for a s. 7 Charter breach, as set out in Carter v. Canada (Attorney General), 2015 SCC 5, in the following terms:
[55] In order to demonstrate a violation of s. 7, the claimants must first show that the law interferes with, or deprives them of, their life, liberty or security of the person. Once they have established that s. 7 is engaged, they must then show that the deprivation in question is not in accordance with the principles of fundamental justice.
[Emphasis added.]
[104] He rejected the Named Persons’ proposition, founded upon R. v. Bellusci, 2012 SCC 44, and Hawley v. Bapoo, [2005] O.J. No 4328 (Q.L.), 76 O.R. (3d) 649 (S.C.), that no unlawful acts by the government can comport with the principles of fundamental justice. He was of the view those authorities did not support such a broad proposition. However, he considered the state conduct in this case, like that in Hawley and Canada (Prime Minister) v. Khadr, 2010 SCC 3 to be clearly inconsistent with the basic tenets of our legal system. He concluded:
[719] Neither [Khadr] nor Hawley address a specific principle of fundamental justice that was breached, yet both consider state conduct that was clearly inconsistent with the basic tenants [sic] and standards of the Canadian legal system. I find that this unique case presents a similar situation.
[720] As in Hawley, it cannot be seriously argued that the Disclosure, which the defendant conceded was illegal, was nonetheless done in accordance with the principles of fundamental justice. The protection established at law is that informer privilege is nearly absolute. It has been termed a sacrosanct, ancient, and hallowed principle. The negligent disclosure of [their] status defeated the purpose of the privilege by exposing the plaintiffs to the very risks the privilege is meant to protect against. In particular the plaintiffs submitted, and I agree, that the deprivation was negligent, and without justification in law. It would create an inconsistency in the legal system to find that the state, nonetheless, respected the principles of fundamental justice with their negligence.
[721] In the result, I find that the plaintiffs’ s. 7 right to life and security of the person were breached and not in accordance with the principles of fundamental justice. Since the defendant did not attempt to argue the breach was in accordance with s. 1. I find that the plaintiffs have established an unjustified breach of s. 7 of the Charter.
[105] The Named Persons had sought to have the court recognize informer privilege as a distinct principle of fundamental justice. The judge considered that to be a novel proposition requiring consideration of whether informer privilege embodies (1) a legal principle (2) about which there is significant societal consensus that it is fundamental to the way in which the legal system ought fairly to operate, and (3) is capable of identification with sufficient precision to yield a manageable standard against which to measure deprivations of life, liberty or security of the person: the template for analysis described in R. v. Malmo-Levine; R. v. Caine, 2003 SCC 74 at para. 113. After summarizing the parties’ arguments, he distinguished the principal authority relied upon by the Attorney General in opposing the recognition of informer privilege, R. v. Crevier, 2015 ONCA 619, where the Court held (at para. 57) “informer privilege is not a Charter-protected right”. He wrote (at para. 727): “I do not read Crevier as broadly finding that informer privilege cannot receive Charter protection”. Despite doing so, however, he declined to rule on whether informer privilege is a principle of fundamental justice. Having found the deprivation of liberty and security of the person in this case was “without justification in law” and therefore “not in accordance with the principles of fundamental justice”, he considered it unnecessary to address the question.
[106] In any event, he would decline to recognize informer privilege as a principle of fundamental justice “without a factual matrix relating to how this new principle of fundamental justice would function in a criminal proceeding”: at para. 728. However, $12,500 was awarded to each plaintiff as a remedy under s. 24(1) of the Canadian Charter of Rights and Freedoms to serve as vindication of the breach of their s. 7 rights to life and personal security. The judge explained the rationale for that award as follows:
[791] …[T]he conduct in this case was not highhanded or oppressive such that aggravated or punitive damages were warranted. However … the plaintiffs in this case argued, and I accepted, that the nature of confidential informer privilege and the harms in this case caused a distinct loss that would not be fully addressed through compensatory tort damages. In particular, I accept that the breach of the plaintiffs’ Charter rights and the harm it caused to society is best addressed by the vindication function of Charter damages.
[107] In Bellusci, Fish J. described the standard of review from a s. 24(1) Charter damages award as follows:
[17] It is well established that a trial judge’s order under s. 24(1) of the Charter should be disturbed on appeal “only if the trial judge misdirects himself or if his decision is so clearly wrong as to amount to an injustice”: R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297, at para. 117; Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391, at para. 87.
[18] That this is the appropriate standard of review was unanimously reaffirmed by the Court, citing Regan, in R. v. Bjelland, 2009 SCC 38, [2009] 2 S.C.R. 651 (Rothstein J., at para. 15; Fish J., at para. 51). Speaking for myself and Justices Binnie and Abella, dissenting in the result, I elaborated as follows on the agreed standard of review:
On an application under s. 24(1) of the Canadian Charter of Rights and Freedoms, once an infringement has been established, the trial judge must grant “such remedy as [is] appropriate and just in the circumstances”. The remedy granted must vindicate the rights of the claimant, be fair to the party against whom it is ordered, and consider all other relevant circumstances. Appellate courts may interfere with a trial judge’s exercise of discretion only if the trial judge has erred in law or rendered an unjust decision. This is particularly true of remedies granted by trial judges under s. 24(1) of the Charter, which by its very terms confers on trial judges the widest possible discretion. Finally, appellate courts must take particular care not to substitute their own exercise of discretion for that of the trial judge merely because they would have granted a more generous or more limited remedy. [Emphasis in original; para. 42.]
[108] The Attorney General contends the trial judge erred in law in finding a s. 7 breach and in awarding damages under s. 24(1) without an explicit finding that the disclosure was irreconcilable with an identified principle of fundamental justice. The Attorney General, joined in this respect by British Columbia, submits there is no principle of informer privilege capable of identification with sufficient precision to yield a manageable standard against which to measure deprivations resulting from disclosure.
[109] The Named Persons defend the trial judge’s reasoning. They say there are circumstances in which it should not be necessary to identify an underlying principle of fundamental justice before finding a s. 7 breach, instances where, in the words of the judge, it cannot be seriously maintained that the act that resulted in the deprivation of life, liberty or security of the person was consistent with the principles of fundamental justice. In the alternative, they say if identification of a principle of fundamental justice is always required in support of a claim founded upon a breach of s. 7, informer privilege is such a principle and it ought to have been recognized as such by the trial judge.
[110] The first question we face is whether the judge erred in concluding the Named Persons’ s. 7 Charter rights had been infringed without identifying a breach of a principle of fundamental justice. This requires us to canvas the s. 7 jurisprudence with a view toward identifying the cases in which a breach of s. 7 has been established without explicit identification of a principle of fundamental justice. It requires us to address whether the judge erred in concluding that the deprivations in this case were analogous to those found in Hawley and Khadr.
[111] If we are of the view that there can be no s. 7 Charter breach without a finding that the impugned state action is inconsistent with an established or identified principle of fundamental justice there remain further questions for our consideration:
b) Whether the judge erred in concluding that the “factual matrix” established on the evidence before him was insufficient to determine whether the concept of informer privilege embodies a principle of fundamental justice; and, if so
c) Whether the entitlements and obligations forming part of the concept of informer privilege should be recognized as aspects of a principle of fundamental justice.
[112] The principles of fundamental justice establish the parameters of the interests protected by s. 7 of the Charter: Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, 1985 CanLII 81 [Motor Vehicle Reference] at para. 25.
[113] When addressing a claim for Charter damages founded upon a breach of s. 7 it is essential that the parameters of the protected interests be clearly defined. It is not sufficient to simply declare that the particular state action in issue deprived someone of their right to life, liberty or security of the person in a manner that offends the basic tenets of our legal system. That is especially so where the damage award is intended as vindication of the breach. A breach of the s. 7 right cannot be vindicated if the basis for the breach is not appropriately identified.
[114] As McLachlin J. (as she then was) noted in Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779 at 854, 1991 CanLII 78, the burden of proof rests on the applicant for a Charter remedy at all stages of the s. 7 analysis, including the burden of establishing that the state action “offends the fundamental principles of justice enshrined in s. 7 of the Charter” [emphasis added]. See also Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4 at para. 3; Kazemi Estate v. Islamic Republic of Iran, 2014 SCC 62 at para. 135; Carter at para. 71.
[115] That burden has frequently been re-emphasised. In R. v. J.J., 2022 SCC 28, Rowe J., writing in dissent, but not on this point, noted:
[359] In order to determine whether there is a violation of s. 7, the Court applies a three-step analysis (R. v. White, [1999] 2 S.C.R. 417, at para. 38):
(1) Is there a real or imminent deprivation of life, liberty, security of the person, or a combination of these interests?
(2) If so, one must identify and define the relevant principles of fundamental justice.
(3) Is the deprivation in accordance with the relevant principle or principles of fundamental justice?
[360] Although this test is well-established, applying it in practice has proven difficult. The reach of s. 7 can extend beyond the administration of justice, which may “be implicated in a variety of circumstances” (Gosselin, at para. 78), and its boundaries remain unsettled. For this reason, s. 7 has been described by commentators as “elusiv[e]” and “mysterious” (T. Lipton, “All Charter Rights Are Equal, But Some Are More Equal than Others” (2010), 52 S.C.L.R. (2d) 449, at p. 449).
[361] Unlike ss. 11(c) and 11(d), s. 7 contains significant internal limits. Once a deprivation of life, liberty or personal security is established, it can nonetheless be shown that the deprivation is in accordance with the “principles of fundamental justice”. It is at this stage of the analysis where many difficulties arise.
[Emphasis added.]
[116] In Malmo-Levine the Court spoke of the process of “arriving at” or “elucidating a particular principle of fundamental justice”: at para. 98. These phrases are inconsistent with a finding of a breach of s. 7 without the identification of the particular principle of justice that has been violated.
[117] The elucidation of the principle is important because, as the jurisprudence makes clear, the analysis calls for consideration of the nature, source, rationale and essential role of the principle. In the words of Sopinka J. (in Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519 at 590, 1993 CanLII 75), a principle will be recognized as a principle of fundamental justice within the meaning of s. 7 where it is capable of being “identified with some precision and applied to situations in a manner which yields an understandable result”.
[118] It is clearly insufficient to ground a Charter damages claim upon the simple allegation that the impugned state act is inimical to an existing legal principle, such as the “harm principle” (considered in Malmo-Levine) or “the best interests of the child” (considered in Canadian Foundation for Children, Youth and the Law) or breaches a common law rule. Something more is required, namely, the applicant must establish that the legal principle meets the Charter test for a principle of fundamental justice.
[119] In Carter the Court, considering the Charter compliance of legislation, observed:
[71] Section 7 does not promise that the state will never interfere with a person’s life, liberty or security of the person — laws do this all the time — but rather that the state will not do so in a way that violates the principles of fundamental justice.
[72] Section 7 does not catalogue the principles of fundamental justice to which it refers. Over the course of 32 years of Charter adjudication, this Court has worked to define the minimum constitutional requirements that a law that trenches on life, liberty or security of the person must meet (Bedford, at para. 94). While the Court has recognized a number of principles of fundamental justice, three have emerged as central in the recent s. 7 jurisprudence: laws that impinge on life, liberty or security of the person must not be arbitrary, overbroad, or have consequences that are grossly disproportionate to their object.
[Emphasis added.]
[120] In my view it is not, as the trial judge found (at para. 720), “an inconsistency in the legal system to find that the state … respected the principles of fundamental justice with their negligence”. To paraphrase the judgment in Carter, s. 7 does not promise that the state will never negligently interfere with a person’s life, liberty or security of the person, negligence is unavoidable, but rather it promises the state will not do so in a way that violates the principles of fundamental justice.
[121] The trial judge relied upon Hawley and Khadr in support of the conclusion that it was not necessary to specifically identify a principle of fundamental justice before finding that the deprivation of the appellants’ life and security interests amounted to a breach of their s. 7 Charter right. The Attorney General says neither Hawley nor Khadr supports that proposition. I agree.
[122] The principal issue in Hawley, since resolved in Vancouver (City) v. Ward, 2010 SCC 27, was whether malice or bad faith must be established in order to obtain Charter damages. The trial judge, Ducharme J., engaged in an extensive review of the jurisprudence related to s. 24(1) damages with a view toward identifying the cases where the requirement for bad faith had been addressed. He concluded (at para. 185): “while damages are not the primary remedy in Charter cases … where a constitutional violation is made out damages can be awarded under s. 24(1) where ‘appropriate and just in the circumstances’”. He awarded damages as a remedy for the breach of the plaintiff’s s. 7 Charter right, an assault committed by peace officers in taking the plaintiff out of his car to bring him into a courtroom, on the basis that the officers’ failure to advert to the fact that they were exceeding their authority was “completely unjustifiable in the circumstances”: He held (at para. 198):
… Certainly, the officers cannot be said to have acted in good faith. While stated in the context of a s. 24(2) analysis, the words of Iacobucci J. in R. v. Mann, [2004] 3 S.C.R. 59, [2004] S.C.J. No. 49, at p. 85 S.C.R. are equally apposite here, “good faith cannot be claimed if a Charter violation is committed on the basis of a police officer’s unreasonable error or ignorance as to the scope of his or her authority”.
[123] The award made at trial in Hawley, the Attorney General submits, was founded upon “the uncontroversial and established constitutional principle that police should not assault detainees”.
[124] Khadr, similarly is said to have engaged established constitutional standards that are rooted in the Charter, settled jurisprudence, and obligations under binding international law. The Court clearly stated in Khadr (at para. 22) that the denial of Mr. Khadr’s liberty and security of the person alone did not establish a breach of s. 7 under the Charter: “[t]o establish a breach, Mr. Khadr must show that this deprivation is not in accordance with the principles of fundamental justice”. The Charter breach is explicitly described in the Supreme Court’s recital of the judicial history in that case as follows:
[10] The majority judgment of the Federal Court of Appeal … defined the s. 7 breach more narrowly [than the trial court had]. The majority of the Court of Appeal found that it arose from the March 2004 interrogation conducted with the knowledge that Mr. Khadr had been subject to the “frequent flyer program” [a form of sleep deprivation], characterized by the majority as involving cruel and abusive treatment contrary to the principles of fundamental justice: 2009 FCA 246, 310 D.L.R. (4th) 462.
[Emphasis added.]
[125] The Supreme Court, in turn, clearly described the fundamental principle at issue:
[25] This conduct establishes Canadian participation in state conduct that violates the principles of fundamental justice. Interrogation of a youth, to elicit statements about the most serious criminal charges while detained in these conditions and without access to counsel, and while knowing that the fruits of the interrogations would be shared with the U.S. prosecutors, offends the most basic Canadian standards about the treatment of detained youth suspects.
[Emphasis added.]
[126] It is true that the Court in Khadr noted that the principles of fundamental justice are found in the basic tenets of our legal system but it also repeated the criteria for identification of such principles. The Court held:
[23] The principles of fundamental justice “are to be found in the basic tenets of our legal system”: Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at p. 503. They are informed by Canadian experience and jurisprudence, and take into account Canada’s obligations and values, as expressed in the various sources of international human rights law by which Canada is bound. In R. v. D.B., 2008 SCC 25, [2008] 2 S.C.R. 3, at para. 46, the Court (Abella J. for the majority) restated the criteria for identifying a new principle of fundamental justice in the following manner:
(1) It must be a legal principle.
(2) There must be a consensus that the rule or principle is fundamental to the way in which the legal system ought fairly to operate.
(3) It must be identified with sufficient precision to yield a manageable standard against which to measure deprivations of life, liberty or security of the person.
[127] The Named Persons contend the authorities relied upon by the Attorney General in support of the position that they must establish a violation of a particular, identifiable principle of fundamental justice are cases where legislation was challenged as non-compliant with the Charter. In such cases, the state enjoys the presumption of constitutional validity and the onus naturally falls “on the party attacking the law”. For example, they say the statement in Pearlman v. Manitoba Law Society Judicial Committee, [1991] 2 S.C.R. 869 at 881, 1991 CanLII 26, that “if no principle of fundamental justice is contravened, s. 7 is not violated and there is no need to consider whether there has been a deprivation of life, liberty, or security of the person” is expressly described in the judgment as “the appropriate approach for an analysis of legislation that is said to violate s. 7 of the Charter”.
[128] I would not accede to that argument. I can see no support for the argument that the requirement that the applicant must establish the deprivation in question offends an identifiable principle of fundamental justice need be met only where legislation is being challenged. The requirement is explicit in the wording of the provision itself, and well-accepted to be the “significant internal limit” upon s. 7: see J.J. at para. 361. The interests protected by s. 7 are procedural as well as substantive. As Rowe J. noted in J.J. at para. 360, citing Gosselin v. Quebec (Attorney General), 2002 SCC 84, the reach of s. 7 can extend beyond the administration of justice, which may “be implicated in a variety of circumstances”. Justice Lamer’s description of the principles of fundamental justice as the “qualifier…[that] serves to establish the parameters of the interests” (Motor Vehicle Reference at para. 25) is as applicable in this case, an application for an individualized remedy, as in those cases where the validity of legislation is in issue.
[129] In Chaoulli v. Quebec (Attorney General), 2005 SCC 35, the Court held:
[199] Claimants whose life, liberty or security of the person is put at risk are entitled to relief only to the extent that their complaint arises from a breach of an identifiable principle of fundamental justice. The real control over the scope and operation of s. 7 is to be found in the requirement that the applicant identify a violation of a principle of fundamental justice.
[Emphasis in original.]
[130] In a number of instances, for example Ewert v. Canada, 2018 SCC 30, the Supreme Court of Canada has required the person seeking a Charter remedy other than a declaration of invalidity or reading down of a statute to discharge the onus of establishing a breach of a principle of fundamental justice. In doing so, the Court has implicitly recognized that the obligation to make out a violation of a principle of fundamental justice is not restricted to cases where the constitutionality of legislation is in issue.
[131] It is correct to say that particular principles of fundamental justice have been recognized in cases where the validity of legislation is challenged. Notably, in R. v. Morgentaler, [1988] 1 S.C.R. 30, 1988 CanLII 90; Carter and Canadian Council for Refugees v. Canada (Citizenship and Immigration), 2023 SCC 17, among other leading cases, the Court has considered whether provisions of statutes that impinge on life, liberty or security of the person are arbitrary, overbroad, or have consequences grossly disproportionate to their object. In Morgentaler, Dickson C.J. described the relevant principle of fundamental justice as follows (at 33):
Any infringement of the right to life, liberty and security of the person must comport with the principles of fundamental justice. These principles are to be found in the basic tenets of our legal system. One of the basic tenets of our system of criminal justice is that when Parliament creates a defence to a criminal charge, the defence should not be illusory or so difficult to attain as to be practically illusory.
[Emphasis added.]
[132] The Named Persons place some weight upon the statement in Morgentaler, (at 54) that “if the state does interfere with security of the person, the Charter requires such interference to conform with the principles of fundamental justice”. They contend that where there is unlawful state interference with security of the person and the state offers no justification for that interference that would bring it within the ambit of a deprivation in accordance with the principles of fundamental justice, a Charter breach is established. I would not accede to that argument. The statement that interference with the protected interests must be in conformity with principles of fundamental justice is not controversial. It does not modify and is not inconsistent with the settled law that a person attempting to prove a breach of s. 7 Charter rights bears the burden of establishing a violation of a principle of fundamental justice. The Named Persons’ submission is irreconcilable with the distinction that has been drawn between common law rules and legal principles (on one hand) and the principles of fundamental justice (on the other), insofar as it treats any wrongful act that results in a deprivation of security of the person as a Charter breach. It ignores the fact that the interests protected by s. 7 are qualified.
[133] In summary, I am of the view that the judge erred in law by failing to elucidate the principle of fundamental justice he found to have been violated in this case. This error is fatal to the Charter damages award, unless there is some other basis established on the record that allows this Court to uphold the judge’s ruling.
[134] In my opinion, the trial judge correctly rejected the Named Person’s submission that the disclosure was unlawful and therefore, without question, resulted in a deprivation that could not be in accordance with principles of fundamental justice. In support of that argument the Named Persons cite Professor Hamish Stewart’s observation in Fundamental Justice: Section 7 of the Canadian Charter of Rights and Freedoms, 2nd ed (Toronto: Irwin Law, 2019) at 98:
Unlawful conduct that affects physical integrity—that is, an assault by a state agent—not only engages security of the person but necessarily violates section 7 of the Charter [references omitted] and cannot be justified under section 1. An illegal act cannot comply with the principles of fundamental justice and is not “prescribed by law” for section 1 purposes.
[Emphasis added.]
[135] The Named Persons, referring to the admission of negligence, say the disclosure is acknowledged to be “unlawful” and therefore cannot be an act that complies with the principles of fundamental justice. As they did in the trial court, they submit that “wrongful state action can give rise to a breach of section 7, absent the identification of a further violation of a principle of fundamental justice”. The cases upon which they, and Professor Stewart, rely, Hawley and Bellusci offer very limited support for this proposition. Arguably, both are cases where the violation of principles of fundamental justice were so apparent that no elucidation was required. The state conduct at issue in Bellusci was described as a case of “unlawful extrajudicial punishment that would shock the public”: at para. 22. It is plain from the Court’s reasons in Bellusci that the remedy granted in that case, a stay of proceedings under s. 24(1) of the Charter, was grounded in the doctrine of abuse of process (at para. 21), which has been held to be subsumed by s. 7 of the Charter: R. v. O’Connor, [1995] 4 S.C.R. 411, 1995 CanLII 51 at para. 71. The impugned act in Hawley, as I have noted above, was also an assault by police officers which, if intentional and administered without lawful authority, will also engage the abuse of process doctrine.
[136] It is of note that in Ewert, the Court addressed what it referred to (at para. 75) as “a proposed new principle of fundamental justice: that the state must obey the law”, implicitly recognizing that no such principle has been recognized and that its existence is uncertain.
[137] The Named Persons say the wrongful breach of the obligation to maintain the identity of an informer in confidence may be said to fall within what is referred to in some cases as the “residual” category of cases where misconduct that falls outside a recognized category warrants an award of Charter damages. They cite Bellusci, in which a judicial stay of proceedings was ordered as a s. 24 Charter remedy, as such a case. In that case, Fish J. described the trial judge’s reasoning as follows:
[21] It is clear from the substance of his analysis that he felt the Charter breach in issue here fell within the “residual” and “exceptional” category of cases where the misconduct was “so egregious that the mere fact of going forward in the light of it will be offensive” (Tobiass, at para. 91).
[22] The trial judge held that this was a case of unlawful extrajudicial punishment that would shock the public. Mr. Bellusci was attacked by an agent of the state while chained, handcuffed, shackled and confined to his cell in a secure prison van. This was an apparent act of revenge by a prison guard who decided to make Mr. Bellusci [TRANSLATION] “pay physically” for his unacceptable conduct (para. 21). …
[138] Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391, 1997 CanLII 322, to which Fish J. referred, was decided at a time when it was widely accepted that the principles of fundamental justice referred to in s. 7 were principally procedural in nature, rather than substantive. The Charter breach found to have occurred fell within a “residual category” where a stay of proceedings might be ordered as a s. 24(1) remedy. The category was “residual” in the sense that the breach was not conduct affecting the fairness of the trial or impairing other procedural rights but was nevertheless conduct that tended to undermine the integrity of the judicial system. The Court noted:
89 Most often a stay of proceedings is sought to remedy some unfairness to the individual that has resulted from state misconduct. However, there is a “residual category” of cases in which a stay may be warranted. L’Heureux‑Dubé J. described it this way, in R. v. O’Connor, [1995] 4 S.C.R. 411, at para. 73:
This residual category does not relate to conduct affecting the fairness of the trial or impairing other procedural rights enumerated in the Charter, but instead addresses the panoply of diverse and sometimes unforeseeable circumstances in which a prosecution is conducted in such a manner as to connote unfairness or vexatiousness of such a degree that it contravenes fundamental notions of justice and thus undermines the integrity of the judicial process.
The residual category, it bears noting, is a small one. In the vast majority of cases, the concern will be about the fairness of the trial.
90 If it appears that the state has conducted a prosecution in a way that renders the proceedings unfair or is otherwise damaging to the integrity of the judicial system, two criteria must be satisfied before a stay will be appropriate. They are that:
(1) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; and
(2) no other remedy is reasonably capable of removing that prejudice.
[Emphasis added.]
[139] In my opinion, the judge was correct to conclude that neither Bellusci nor the line of cases of which it is a part are of assistance to the Named Persons. They are clearly not authority for the proposition that any wrongful act on the part of a state agent resulting in deprivation of the right to life, liberty and security of the person amounts to a s. 7 Charter breach. The “residual” category is not a class of cases where a breach of a principle of fundamental justice need not be identified. It is, rather, a category of cases where the misconduct does not affect procedural fairness at trial.
[140] If there is any support for the conclusion that illegal acts on the part of state actors per se are contrary to principles of fundamental justice, neither the weight of authority nor logic supports extension of that rule to negligent acts by state agents. Such acts may be actionable but are certainly not “illegal acts” of the sort considered by Professor Stewart to arguably fall within the parameters of s. 7.
[141] The Named Persons, without addressing the trial judge’s conclusion there was an insufficient factual matrix “relating to how this new principle of fundamental justice would function in a criminal proceeding”, say it was open to him to find informer privilege is a principle of fundamental justice. They submit his order can be upheld on that ground.
[142] The Attorney General, citing Canadian Council for Refugees at paras. 175–182; and Ewert at paras. 68–76, submits the question whether informer privilege should be recognized as a new principle of fundamental justice under s. 7 of the Charter should be decided on a record “that provides a holistic picture of the duties informer privilege places on multiple actors, including government”. That record, the Attorney General says, does not exist here and this Court, like the trial judge, should decline to find a new principle of fundamental justice short of a proper factual record.
[143] In my view, while there are compelling arguments in favour of recognizing informer privilege as a principle of fundamental justice and doing so on the record that was before the trial judge, doing so would not assist the appellants.
[144] A principle of law will be recognized as fundamental where it meets now well-recognized criteria. In the Motor Vehicle Reference, Lamer J. noted (at para. 31) that the principles of fundamental justice “do not lie in the realm of general public policy but in the inherent domain of the judiciary as guardian of the justice system”. He further observed:
66. Whether any given principle may be said to be a principle of fundamental justice within the meaning of s. 7 will rest upon an analysis of the nature, sources, rationale and essential role of that principle within the judicial process and in our legal system, as it evolves.
67. Consequently, those words cannot be given any exhaustive content or simple enumerative definition, but will take on concrete meaning as the courts address alleged violations of s. 7.
[145] The jurisprudence to which we have been referred describes informer confidentiality as fundamental to the way in which the legal system ought fairly to operate. It is “an ancient and hallowed protection which plays a vital role in law enforcement” and is “of such importance that it cannot be balanced against other interests”: R. v. Leipert, [1997] 1 S.C.R. 281, 1997 CanLII 367 at paras, 9, 14. In R. v. Garofoli, [1990] 2 S.C.R. 1421 at 1459, 1990 CanLII 52, Sopinka J. cited as the Court’s most recent expression of the rule of informer confidentiality the following passage from the judgment of Beetz J. in Bisaillon v. Keable, [1983] 2 S.C.R. 60 at 93, 1983 CanLII 26:
…[A]t common law the secrecy rule regarding police informers’ identity has chiefly taken the form of rules of evidence based on the public interest, which prohibit judicial disclosure of police informers’ identity by peace officers who have learned the informers’ identity in the course of their duties. A witness also may not be compelled to state whether he is himself a police informer. The rule was developed in criminal proceedings, apparently in trials for high treason, but it also applies in civil matters, and in both cases it has been established for reasons which relate to the essential effectiveness of the criminal law. The rule is subject to only one exception, imposed by the need to demonstrate the innocence of an accused person. There are no exceptions in proceedings other than criminal. Its application does not depend on the judge’s discretion, as it is a legal rule of public order by which the judge is bound.
[146] Sopinka J. elaborated, at 1459:
The identity of informers is generally not relevant. When a trial judge is engaged in the editing process, he or she must consider the “innocence at stake” exception. In Re Rideout and The Queen (1986), 31 C.C.C. (3d) 211 (Nfld. S.C.), Goodridge J. took the following view of the exception, at p. 220:
The rule against the identification of police informants is only made possible because, in almost every case, it will not be relevant … Where it is relevant, it will be admitted for that was the one exception mentioned by Beetz J. in the passage set forth above -- the situation where disclosure was needed to demonstrate the innocence of an accused person.
[147] That may be such a reasonably concise and sufficient description of the nature, sources, rationale and essential role of the principle to lead to its recognition as a principle of fundamental justice.
[148] Having said that, it should be borne in mind that not every breach of a Charter right gives rise to a valid claim to damages as an appropriate s. 24(1) remedy. Even if we were to recognize informer privilege as a principle of fundamental justice and find that it was breached through negligent disclosure, it is my view that in the circumstances of this case the award of Charter damages was unwarranted and unsupportable. As Cromwell J. noted in Ernst v. Alberta Energy Regulator, 2017 SCC 1 at para. 25, courts must be careful not to extend the availability of Charter damages too far (citing Henry v. British Columbia (Attorney General), 2015 SCC 24 at para. 91). He observed:
[26] The leading case about when Charter damages are an appropriate and just remedy is Vancouver (City) v. Ward, 2010 SCC 27, [2010] 2 S.C.R. 28. … Not every bare allegation claiming Charter damages must proceed to an individualized, case-by-case consideration on its particular merits. Ward held that Charter damages will not be an appropriate and just remedy where there is an effective alternative remedy or where damages would be contrary to the demands of good governance.
[149] Establishing a breach of s. 7 is only the first step in making out a claim for Charter damages. The second step is establishing that damages are a just and appropriate remedy. As Cromwell J. noted, there are at least two important countervailing considerations in the second step. These are described in Henry as follows:
[38] The first countervailing consideration is the existence of alternative remedies. Section 24(1) is a broad remedial provision that provides a range of responses to Charter violations beyond a monetary award. In addition, there may be substantial overlap between private law and s. 24(1) actions against the government. Where the state can show that another remedy is available to effectively address a Charter breach — whether under the Charter or in private law — a damages claim may be defeated at the third step of Ward. For instance, if a declaration of a Charter breach would adequately achieve the objectives that would otherwise be served by a damages award, then granting damages as well as a declaration would be superfluous, and therefore inappropriate and unjust in the circumstances: Ward, at para. 37.
[39] The second countervailing consideration — and the one at issue in this case — relates to concerns over good governance. Ward does not define the phrase “[g]ood governance concerns” (para. 38), but it serves as a compendious term for the policy factors that will justify restricting the state’s exposure to civil liability. As the Chief Justice observed:
In some situations, … the state may establish that an award of Charter damages would interfere with good governance such that damages should not be awarded unless the state conduct meets a minimum threshold of gravity.
[Emphasis in original.]
[150] The Attorney General in the case at bar stresses the first of these countervailing considerations, arguing that the purpose of vindication is served by the award of tort damages in this case and the existence of that adequate and effective remedy precludes the necessity of resort to the Charter. The first countervailing consideration was nicely defined in Ward:
[34] A functional approach to damages under s. 24(1) means that if other remedies adequately meet the need for compensation, vindication and/or deterrence, a further award of damages under s. 24(1) would serve no function and would not be “appropriate and just”. The Charter entered an existent remedial arena which already housed tools to correct violative state conduct. Section 24(1) operates concurrently with, and does not replace, these areas of law. Alternative remedies include private law remedies for actions for personal injury, other Charter remedies like declarations under s. 24(1), and remedies for actions covered by legislation permitting proceedings against the Crown.
[Emphasis added.]
[151] The trial judge recognized that a Charter damages award should not result in double compensation and acknowledged that, having made a compensatory tort award, there remained no basis for compensatory Charter damages.
[152] He dismissed the submission that deterrent damages were appropriate, finding (at paras. 764–765) the disclosure was not a result of a “systemic” failure on the part of [the State], breaches had not happened frequently, [State agents] were well acquainted with the law, and errors were unavoidable. He concluded:
[766] In these circumstances, I am not convinced that increasing the cost of a breach of informer privilege through a Charter damages award aimed at deterrence would actually serve to reduce unintentional future breaches. As such, I will only consider Charter damages with the aim of vindication.
[153] However, he found, at paras. 740–742, that the impact on society of the disclosure in this case was “grave”; that the public may doubt the state’s ability to protect informers or think that the state is unable to advance important prosecutions due to the negligence of its agents. This might have “a chilling effect on witnesses’ willingness to come forward, which compromises future prosecutions”: at para. 742. He held an award to vindicate the breach “would serve to reaffirm the importance of the constitutional rights violated and, to some degree, punish the state for its conduct”: at para. 746.
[154] The Named Persons say the judge erred in dismissing the argument that damages could serve a deterrent purpose. They say, having demonstrated a breach of their right to confidentiality and that other breaches had occurred, and on the limited record, it “was not open to the trial judge to conclude the function of deterrence was not engaged”. They argue from a policy perspective the Attorney General should not be given the benefit of the doubt arising from a lack of specific information with respect to systemic failures. The system is understandably opaque. As a result, they are handicapped in their effort to shed light on conduct that requires deterrence.
[155] I would not accede to these arguments. There was evidence before the judge with respect to how the disclosure came about in this case. There was evidence with respect to the relative infrequency of breaches of informer privilege. There was evidence of ongoing efforts to be vigilant. The judge’s conclusion that an award of Charter damages to serve the purpose of deterrence was not warranted was supported on the evidence and I see no basis upon which we should interfere with it.
[156] The foundation of the award to vindicate a breach grounded in negligence is problematic. I agree with the Attorney General’s submission, supported by the intervener, British Columbia, that tort law provides an adequate remedial tool to address negligent state conduct. This Court cautioned against the approach taken by the trial judge in Johnson v. British Columbia (Attorney General), 2022 BCCA 82 at para. 87 (leave to appeal to SCC ref’d, [2022] S.C.C.A. no. 139), and Workers’ Compensation Board v. Sort, 2022 BCCA 318 at paras. 88–92.
[157] The violation of the constitutional right asserted by the Named Persons is “coterminous” with the private law cause of action. Here, as in Johnson, the harms alleged to have resulted from the tort and the alleged breach of a Charter right do not differ in any way and are particularized in precisely the same way. I can see no purpose that would be served by a Charter damages award that is not served by the tort award. Here, again as in Johnson, there is another avenue to damages and both avenues lead to the same place. That view was apparently shared by the trial judge in Nissen, where the plaintiff’s claim for Charter damages said to flow from a s. 7 Charter breach when her identity as the complainant was disclosed was dismissed as duplicative of the tort claim.
[158] In Johnson, Butler J.A., for the Court, approved the trial judge’s dismissal of the claim for Charter damages, founded upon the assertion they could serve the purpose of vindication, in the following terms:
[83] As the judge noted at paras. 52 and 53 in the Reasons, tort law “contains within it vindicating power” and operates to deter future breaches through punitive and aggravated damages: see also Lewis Klar, Remedies in Tort (Toronto: Thomson Reuters, 1987) (loose-leaf updated 2022, release 2), ch. 28 at §28.5. Aggravated damages are compensatory in nature, and their primary aim is to compensate the plaintiff while recognizing the egregious nature of the behaviour in response to which they are awarded: Norberg v. Wynrib, [1992] 2 S.C.R. 226 at 264; Whiten v. Pilot Insurance Co., 2002 SCC 18 at para.116. Secondarily, they may also serve to satisfy the objectives of retribution, deterrence and denunciation. Where they are insufficient to achieve those objectives, however, the court may turn to punitive damages: Performance Industries Ltd. v. Sylvan Lake Golf & Tennis Club Ltd., 2002 SCC 19 at para. 87.
[159] In the case at bar, the judge’s finding that no case was made out for aggravated damages answers the assertion that there was conduct of an egregious nature; the dismissal of the claim for punitive or exemplary damages (and the express finding that no deterrent purpose would be served by a s. 24(1) award) undermines the assertion that such an award is necessary to serve the objectives of retribution, deterrence or denunciation. I see no justification for an award to serve the purpose of “punishing the state for its conduct” given the express finding that there was no systemic fault, there was nothing but unavoidable human error and no remedial purpose in such an award.
[160] In his submissions at trial, counsel for the Named Persons expressly recognized “under nonpecuniary damages the court can actually fulfil compensation, deterrence, and vindication through a massive nonpecuniary damage award to each members of this family”.
[161] The trial judge dismissed the Attorney General’s submission that Charter damages would be entirely duplicative in this case. He was of the view (expressed at para. 790) that “a harmonious reading of Johnson and Ward means that there must be cases where there is a concurrent tort claim and yet awards in tort, including aggravated and punitive damages, would not adequately serve the aims of Charter damages and redress the harm done”. I agree with that conclusion. Further, however, he held this is one such case. I do not accept that proposition and in my view, it is wrong in law. The Attorney General is correct to say that Ward stands for the proposition that a damages award may serve the function of “vindication” as a remedy under s. 24(1) of the Charter, if a monetary remedy is needed to ensure the “efficacy of the [constitutional] protection”: at para. 28. There is no basis to conclude that in this case a monetary award is necessary to ensure the efficacy of the constitutional protection of the Named Persons’ s. 7 Charter right.
[162] The parties directed us to Justice Didcott’s helpful description of vindication damages in Fose v. Minister of Safety and Security, 1997 (3) S.A. 786 (C.C.), a decision of the Constitutional Court of South Africa (cited with approval in Ward and by this Court in Henry v. British Columbia (Attorney General), 2017 BCCA 420):
[82] … [T]he idea of vindication, used in the sense that it conveys at present, calls for some elaboration. One of the ordinary meanings which “to vindicate” bears, the aptest now so it seems to me, is “to defend against encroachment or interference”. Society has an interest in the defence that is required here. Violations of constitutionally protected rights harm not only their particular victims, but it as a whole too. That is so because, unless they are adequately remedied, they will impair public confidence and diminish public faith in the efficacy of the protection, and for a good reason too since one invasion discounted may well lead to another. The importance of the two goals is obvious and does not need to be laboured. How they are best attained is the question.
[163] The Attorney General and British Columbia point out that this passage is followed by two observations that are apposite in this case: first, (at para. 83) the view that a conventional award under the heading of general damages, taking into account the gravity of the harm arising from the breach, would vindicate the right invoked clearly and firmly enough; second, the observation (at para. 84) that it may not strengthen the cause of vindication for an individual claimant to be enriched at the expense of the taxpayer. In the circumstances of this case, the purpose of vindication is even less likely to be served than in most cases, given the fact the judgment will not be published and the particulars of negligence cannot be aired.
[164] In my opinion, it was an error of law to make an award of Charter damages in this case.
[165] The second countervailing consideration may also bar an award of Charter damages in some cases where there is alleged to be a breach of informer privilege, even if there is no tort claim. In his judgment in Henry, Moldaver J. indicated (at para. 33) that the threshold for Charter damages he described “may well offer guidance in setting the applicable threshold for other types of [prosecutorial] misconduct…”. That guidance is helpful in the case at bar.
[166] There are good policy reasons for restricting the state’s exposure to civil liability for negligently revealing information that might tend to identify confidential informers in attempting to comply with the state’s disclosure obligations to accused persons. To paraphrase a passage from Henry (at paras. 67–69), there is a “stringent and, at times, heavy burden” on the Crown to make timely and continuous disclosure of material information to accused persons in order to permit them to make full answer and defence while protecting the identity of confidential informers. Canadians rightly expect that the Crown will fulfill its disclosure obligations with diligence and rigour. However, as the trial judge in this case concluded, our system is imperfect and disclosure of information tending to identify informers, like failure to make sufficient disclosure “can, and does, happen, sometimes taking an extraordinary human toll and resulting in serious harm to the administration of justice”.
[167] In my view, what Moldaver J. said of inadequate disclosure in Henry is equally true of inappropriate disclosure that poses a risk to confidential informers (and applicable even in the event we were to recognize informer privilege as a principle of fundamental justice):
[69] …[A]ll failures to disclose are not made equal. Highly blameworthy conduct, such as the intentional suppression of crucial evidence to obtain a conviction at all costs, sits at one end of the spectrum. At the other, one finds good faith errors in judgment about the relevance of certain tangential information. Both scenarios constitute a breach of an accused’s Charter rights. Yet, manifestly, these scenarios do not possess the same persuasive force in terms of justifying a Charter damages award under s. 24(1).
[70] Given the complex nature of many disclosure decisions, courts should be exceedingly wary of setting a liability threshold that would award Charter damages for even minor instances of wrongful non-disclosure. Crown counsel will, from time to time, make good faith errors. Exposing prosecutors to potential liability every time such errors are made would, in my view, interfere with the proper execution of prosecutorial functions. Setting the liability threshold too low would also pose a considerable risk that baseless damages claims against the Crown would proliferate.
[168] Even if we were to recognize informer privilege as a principle of fundamental justice, not every deprivation of security of the person caused by the disclosure of information tending to identify an informer would warrant an award under s. 24(1). Such a standard, like the standard rejected in Henry, “casts too wide a net” and exposes [the State] to an unprecedented scope of liability that would affect the exercise of their vital public functions.
[169] The trial judge in the case at bar (at para. 773) considered the breach in this case to be “materially different” from the Henry breach. He was of the view the high liability threshold established in that case was inapplicable because the policy reasons identified in Henry do not apply to this case. He held:
[780] The defendant’s core argument was that disclosure of confidential informer privilege was merely another disclosure decision and, thus, should be protected given the holding in Henry...
[781] I disagree. [The State has] no discretion to breach confidential informer privilege and breaching it, as in this case, may amount to a breach of Charter rights. The majority in Henry … accepted that the [State] has no discretion as to whether to comply with disclosure obligations; yet they also accepted that disclosure decisions involve some exercise of judgment and good faith mistakes can be made by not disclosing evidence that seems immaterial (para. 60).
[782] Informer privilege requires the [State] to exercise care, not judgment, to ensure that identifying information is not disclosed; it is not a decision as to whether or not to disclose certain materials, rather the [State] must take care to protect certain information. Simply put, the rationales that justify insulating [the State] to allow them to exercise core [State] discretion do not apply in this case given the nature of informer privilege.
[783] In sum, I accept that awarding Charter damages for a negligent breach of informer privilege by [the State] will not raise good governance concerns.
[170] In my respectful view, this description of [the State’s] duty is difficult to reconcile with the fact that judgment must be exercised in order to ensure compliance with disclosure obligations does not indirectly compromise informer confidentiality. As noted above, confidentiality may be compromised by the combined effect of the disclosure of discrete pieces of material information. At each stage of the ongoing process of disclosure by multiple parties, judgment must be exercised with respect to the possibility that the disclosure of information may contribute to identification. I do not see how the exercise cannot be considered to involve the exercise of judgment or to be materially different, from a policy perspective, from the task of making appropriate Stinchcombe discovery.
[171] Because the trial judge found the breach in this case to be neither intentional nor a result of systemic failure warranting deterrence, I am of the view that if we were to find a Charter breach to have occurred, the breach, in the words of Moldaver J., does not possess “persuasive force justifying a Charter damages award under s. 24(1)”.
[172] For the reasons I have given, it is my opinion that the awards of Charter damages were duplicative of the tort awards and should be set aside. It is not necessary, in the circumstances, to address the Named Persons’ argument that the award was inadequate to serve the purpose it was meant to serve.
[173] There remains the question of publication of the reasons for judgment at trial and the publication of these reasons for judgment.
[174] The trial judge heard two applications with respect to the publication of his reasons for judgment. The first, heard on November 27, 2023, was addressed in sealed reasons issued on December 21, 2023. After considering the principles described in R. v. Omar, 2007 ONCA 117; Named Person v. Vancouver Sun, 2007 SCC 43; R. v. McKay, 2016 BCCA 391 and Postmedia Network Inc. v. Named Persons, 2022 BCCA 431, the trial judge made an order for publication of redacted reasons for judgment, with a caveat: he had not yet considered the Attorney General’s objection to the disclosure of the reasons on public interest grounds, pursuant to s. 37 of the of the Canada Evidence Act.
[175] [Paragraphs 175–176 entirely redacted to preserve informer confidentiality.]
[176] [Redacted]
[177] An ex parte application was subsequently brought by the Attorney General pursuant to s. 37 of the Canada Evidence Act for an order barring the publication of the redacted reasons. The application was heard in camera and in the absence of counsel for the Named Persons. The Court made a disclosure order, pursuant to subsections 37(4.1) or (5) of the Act which provides:
(4.1) Unless the court having jurisdiction to hear the application concludes that the disclosure of the information to which the objection was made under subsection (1) would encroach upon a specified public interest, the court may authorize by order the disclosure of the information.
(5) If the court having jurisdiction to hear the application concludes that the disclosure of the information to which the objection was made under subsection (1) would encroach upon a specified public interest, but that the public interest in disclosure outweighs in importance the specified public interest, the court may, by order, after considering both the public interest in disclosure and the form of and conditions to disclosure that are most likely to limit any encroachment upon the specified public interest resulting from disclosure, authorize the disclosure, subject to any conditions that the court considers appropriate, of all of the information, a part or summary of the information, or a written admission of facts relating to the information.
[178] The Attorney General submits that the trial judge erred in law in ordering the release of the redacted reasons and that the disclosure order made under ss. 37(4.1) and 37(5) of the Canada Evidence Act was “premised on the same legal errors he made in ordering publication of the RFJ-Redacted Reasons”. He contends we are as well placed as the trial judge was to determine questions of privilege, including whether disclosure of information might tend to identify an informer. In support of that view the Attorney General relies upon Justice Létourneau’s consideration in Canada (Attorney General) v. Ribic (F.C.A.), 2003 FCA 246 of the scope of the Federal Court of Appeal’s appellate role in reviewing the trial court’s disclosure of privileged information pursuant to the precursor of s. 37 (then s. 38 of the Canada Evidence Act):
[36] The power conferred by subsection 38.06(2) can be exercised when … the public interest in disclosure is greater than the public interest in keeping the information secret. The definition of the scope of the power involves a question of law. The scope of the power is determined by answering questions as to what is the subject of the power, who may exercise it, when, why, how and under what conditions. Thus, the decision which misconstrues or misconceives the “what”, i.e., the competing interests, is legally an erroneous decision. The same is true of a decision which authorizes disclosure of sensitive information where the judge erroneously believed that the requisite legal conditions for disclosure are met when they are not. Such a decision extends the scope of the power beyond what is legally authorized. In the same vein, it is also an error of law to apply a wrong standard in balancing the interests at stake and, from there, to conclude that the conditions for the exercise of the power are met. All these decisions relating to the scope of the power are reviewable on a standard of correctness: see Housen v. Nikolaisen, [2002] 2 S.C.R. 235.
[Emphasis added.]
[179] The Named Persons say the question before the judge on the application for redacted reasons, and the subsequent s. 37 Canada Evidence Act objection, was a factual one: would any of the information in the redacted reasons identify or tend to identify named persons? [Three sentences redacted to preserve informer confidentiality].
[180] [Paragraphs 180–190 entirely redacted to preserve informer confidentiality.]
[181] [Redacted]
[182] [Redacted]
[183] [Redacted]
[184] [Redacted]
[185] [Redacted]
[186] [Redacted]
[187] [Redacted]
[188] [Redacted]
[189] [Redacted]
[190] [Redacted]
[192] Counsel for the Named Persons says certain of the statements in Leipert and relied upon by the Attorney General here, should be considered to be applicable only in the case of an anonymous informer, because, as the Court noted (at para. 28): “it is virtually impossible for the court to know what details may reveal the identity of an anonymous informer”. That being the case, the Court was not in a position to decide what information might reveal the identity of the informer. This, they submit, is not such a case; [they are here] to make submissions about what information tends to identify [them].
[193] Insofar as inappropriate balancing is concerned, the Attorney General says the open court principle must yield to informer privilege and in determining what may be safely said in reasons for judgment, the overriding concern must be to keep the informer’s identity confidential and refrain from disclosing any potential identifying information.
[194] The Attorney General notes that in Basi, Fish J., writing for the Court, described the relevant provisions of the Canada Evidence Act and their applicability to cases of informer privilege as follows:
[22] The “specified public interest” at issue in this case is the protection of the identity of informers, more generally known as the “informer privilege”. The informer privilege is a class privilege, subject only to the “innocence at stake” exception. It is not amenable to the sort of public interest balancing contemplated by s. 37(5): R. v. Leipert, [1997] 1 S.C.R. 281, at paras. 12‑14. …
[23] When s. 37 is invoked to protect the informer privilege — a relatively rare occurrence, since the claim of privilege will usually be settled under the common law alone — its strictness is not relaxed. See R. W. Hubbard, S. Magotiaux and S. M. Duncan, The Law of Privilege in Canada (loose-leaf), at p. 3‑44.
[195] The Named Persons submit it would be in keeping with the Supreme Court of Canada’s decision in CBC for this Court to release a version of its reasons on appeal that allows the public to know the material issues before this Court. [One sentence redacted to preserve informer confidentiality].
[196] [One sentence redacted to preserve informer confidentiality]. I am of the respectful view that the trial judge erred in ordering publication of the redacted trial reasons and that he also erred in making a disclosure order pursuant to s. 37 of the Canada Evidence Act when release of the reasons would encroach upon a specified public interest: the preservation of informer privilege.
[197] Having said that, I would not accede to the argument that we should not issue reasons for judgment on this appeal but rather issue a summary description of the nature of the appeal and the outcome. Nor would I accede to the argument that we should not issue reasons that disclose the centrality of informer privilege or its breach.
[198] In my view, we should issue these reasons, redacted in a way that minimizes the risks associated with judicial editing by removing the particulars that may tend to confirm the identity of the informer. I am conscious of the risk of doing so but accept the submission of the Named Persons that they are content to have reasons issued and accept that they are well-qualified to identify information that should not appear in redacted reasons.
[199] In conclusion, I would dismiss the appeals of the awards for non-pecuniary damages and I would dismiss the appeal from the finding [Named Persons] failed to mitigate certain of their pecuniary damages.
[200] I would dismiss the appeal of the Charter damages award but allow the cross-appeal and set aside the award of Charter damages made to each of the Named Persons.
[201] I would allow the appeal of the order for publication of the reasons for judgment of the trial judge and order that no reasons be published on the ground that their publication is not in the public interest. I would order these reasons for judgment be sealed to preserve informer confidentiality and further order publication of a suitably redacted version of these sealed reasons.
“The Honourable Mr. Justice Willcock”
I AGREE:
“The Honourable Mr. Justice Abrioux”
I AGREE:
“The Honourable Madam Justice DeWitt-Van Oosten”
Appendix A
COURT OF APPEAL FOR BRITISH COLUMBIA
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Citation: |
Named Persons v. Canada (Attorney General), |
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|
2025 BCCA 197 |
Date: 20250613
Docket: CA49238
Between:
Named Persons
Appellants/
Respondents on Cross Appeal
(Plaintiffs)
And
Attorney General of Canada
Respondent/
Appellant on Cross Appeal
(Defendant)
And
Attorney General of British Columbia
Intervener
Statement concerning this appeal as read by a single judge pronouncing judgment pursuant to s. 40(1) of the Court of Appeal Act
This is a statement that will be posted on the Court’s website concerning this appeal. It is anticipated that this statement will be replaced with redacted reasons for judgment, as now explained.
The appeal is from orders made June 27, 2023 respecting non-pecuniary damages, mitigation of damages, Charter damages, and publication of reasons for judgment. The cross-appeal is from the order respecting Charter damages.
The reasons for judgment are signed. The appeal is dismissed. The cross-appeal is allowed.
The reasons for judgment and the record of proceedings in this Court and in the Supreme Court are subject to publication bans and sealing orders necessary to protect privileges and confidential information.
To give effect to those protections, an order was made sealing reasons for judgment and requiring publication of redacted reasons in this Court.
Today, June 13, 2025, counsel for the appellant and counsel for the Attorney General of Canada will receive a copy of the sealed reasons for judgment and a copy of proposed partial redactions, having provided undertakings not to disseminate or make publicly available the content of the sealed reasons for judgment or the proposed redactions, except as may be necessary for purposes related to the future conduct of this proceeding.
The Court has asked counsel to provide written submissions concerning the proposed partial redactions and any other redactions that will be necessary before any portion of the judgment can be publicly released.
The Division will settle the redactions that are required to allow for public release of the judgment in redacted form.
The final redacted version of the reasons for judgment will then be published to the Court’s website with a copy of this statement appended to them.
The Court acknowledges the co-operation of all counsel in handling the mechanics of the delivery of judgment in this manner.
NOTE: After following the process detailed above the redacted version of the reasons for judgment was published to the Court’s website on September 10, 2025.