Case information

Criminal law — Evidence — Informer privilege — Suspects who were searched as part of investigation under the Competition Act applied for disclosure of complete copies of informations to obtain that were the basis for the search warrants, which would disclose identity of witnesses — Unidentified witnesses claimed informer privilege at an ex parte, in camera hearing — Superior Court declared witnesses confidential informants entitled to the protection of informer privilege and dismissed application for disclosure of their identity — Is a suspect who has been searched pursuant to a warrant, and who may later be charged, entitled to participate in a first stage hearing where a claim of informer privilege is determined in respect of witnesses whose evidence was relied on the obtain the warrant? — Are individuals who applied for immunity under the Competition Bureau’s Immunity Program protected by informer privilege and, if so, does the agreement to testify that is a condition of that immunity constitute a waiver, either present or future, of the privilege?

Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

(SEALING ORDER)


Sobeys and Metro are suspects or “targets” in an ongoing investigation under the Competition Act, involving allegations of a price-fixing conspiracy in the wholesale and retail bread market. They have not been charged with any offences but they were subject to searches that were authorized by a warrant issued on the basis of Informations to Obtain (ITOs). After the searches, they sought copies of the ITOs and received copies in which the identity of two unidentified witnesses was redacted. They each applied to the Superior Court of Justice for disclosure of the complete (unredacted) ITOs. After Sobeys and Metro made written submissions in support of their applications, the Superior Court adjourned their applications sine die without providing reasons for doing so. At a subsequent case conference, the application judge disclosed that the adjournment had been prompted by a claim by the two unidentified witnesses that they were confidential informers. An in camera, ex parte hearing had taken place and she had granted the unidentified witnesses’ applications, holding they were confidential informants but that their agreement to testify was an express future waiver of informer privilege for the purpose of testifying at a trial. The application judge subsequently dismissed Sobeys and Metro’s applications for the complete ITOs.