Confidential Informers

From Criminal Law Notebook
This page was last substantively updated or reviewed January 2017. (Rev. # 89485)

General Principles

Police will often rely upon confidential informers to form their grounds to effect a warrantless arrest or for the issuance of a judicial authorization such as a search warrant. These are most pervasively seen in dealings related to drugs and organized crime where confidential communications are so often shared to persons who may have an interest in revealing it to police officers.

Information from a confidential informer is only admissible where the defence challenges the grounds of a search, seizure, or arrest, otherwise it is not relevant.[1]

A "tip" from an anonymous or confidential source can be used to form the grounds of arrest or search. The "tip" must be considered based on: [2]

  1. the degree of detail provided;
  2. the informant's source of information;
  3. the informant's prior reliability.

This test was previously stated as the "Debot" test requiring the three "C"s:[3]

  1. was the information predicting the commission of a criminal offence "compelling"?
  2. where that information was based on a "tip" originating from a source outside the police, was that source "credible"?
  3. was the information "corroborated" by police investigation prior to making the decision to conduct the search?

This test is to apply when a warrant is "based largely on information coming from a confidential informant."[4]

All these factors are to be balanced together in the "totality of the circumstances" to determine if the evidence meets "the standard of reasonableness" (or referred to as on a standard of "Reasonable probability").[5]

None of the factors are not "water-tight" inquiries.[6]

Weaknesses present in one factor can be made-up for by strengths on other factors.[7]

An anonymous tip generally is not sufficient.[8] Inquiry must be made into the three Garofoli factors to determine whether it can be reasonably relied upon.[9]

The test remains the same whether considering a warrantless search or a warrant such as a wire-tap.[10]

Hearsay from the informant can be sufficient.[11]

The law must maintain a "distinction between acting on a tip from a reliable source and acting on a tip from an unproven source."[12] Where reliability is unknown, "a relatively thorough investigation is essential" in order to provide corroboration.[13]

Consideration of the reliability of the information must be at the time of the warrantless search or application for a warrant. It cannot be considered ex post facto from the results of the search.[14]


The purpose of considering the level of detail is to "ensure that it is based on more than mere rumour or gossip"[15]


Confirmation of the criminal aspects of a tip is important in cases such as where the tip is anonymous.[16]

Where there is no corroboration or confirmation, the reliability of the source is the essential issue.[17]

  1. R v Graham, 2013 BCCA 75 (CanLII), 299 CCC (3d) 204, per Neilson JA, at para 15
    R v Jir, 2010 BCCA 497 (CanLII), 264 CCC (3d) 64, per Frankel JA, at para 8
  2. R v Warford, 2001 NFCA 64 (CanLII), 161 CCC 309, per Welsh JA
    R v Garofoli, 1990 CanLII 52 (SCC), [1990] 2 SCR 1421, per Sopinka J, at para 68
  3. R v Debot, 1989 CanLII 13 (SCC), [1989] SCJ No 118, per Wilson J, at p. 218-219
    R v Rocha, 2012 ONCA 707 (CanLII), 292 CCC (3d) 325, per Rosenberg JA
    R v MacDonald, 2012 ONCA 244 (CanLII), 290 OAC 21, per Laskin JA
  4. MacDonald, ibid., at para 7
  5. Debot, supra
    Garofoli, supra, at paras 68, 1fss582
    R v Araujo, 2000 SCC 65 (CanLII), [2000] 2 SCR 992, at para 54
    MacDonald, supra
  6. MacDonald, supra
  7. Rocha, supra, at para 16
  8. R v Bennett, 1996 CanLII 6344 (QC CA), 108 CCC 175, per Proulx JA
  9. Debot, supra, at p. 1168
    R v Plant, 1993 CanLII 70 (SCC), [1993] 3 SCR 281, per Sopinka J, at para 35
  10. Garofoli, supra, at para 68 ("I see no difference between evidence of reliability of an informant tendered to establish reasonable and probable grounds to justify a warrantless search ... and evidence of the reliability of an informant tendered to establish similar grounds in respect of a wiretap authorization.")
  11. Garofoli, supra, at para 68
  12. R v Philpott, 2002 CanLII 25164 (ON SC), [2002] O.T.C. 990, per Quinn J, at para 161
  13. Philpott, ibid., at para 162
  14. Garofoli, supra, at para 68
  15. R v Greffe, 1990 CanLII 143 (SCC), [1990] 1 SCR 755, per Lamer J
  16. see R v Campbell, 2003 MBCA 76 (CanLII), 175 CCC (3d) 452, per Scott CJ, at para 27
  17. R v Maton, 2005 BCSC 330 (CanLII), 65 WCB (2d) 186, per Romilly J, at para 45
    R v Pippin, 1994 CanLII 4659 (SK CA), 27 CR (4th) 251, per Vancise JA
    R v Cheecham, 1989 CanLII 5129 (SK CA), 51 CCC (3d) 498, per Tallis JA
    R v Duther2002 NBPC 4(*no CanLII links)
    R v Duncan, 2004 MBCA 64 (CanLII), 188 CCC (3d) 17, per Monnin JA

Level of Detail

  • Consider:
    • Length of discussions with informer
    • Amount of information known of accused (by name or description)?
    • Did information include the location of criminal offence?
    • did information include nature and quality of drugs?
    • did information include the nature of the deal?

In a drug trafficking case, details that should often be considered include:[1]

  • type of drug observed, the amount of drug present, and how informer would have known;
  • location within the residence in which the drug was observed or stored;
  • observations regarding indicia of intent to offer for resale;
  • recency of observations; and
  • location of sources at time of observation, whether it was made inside or outside.
  1. e.g. see R v Morris, 1998 CanLII 1344 (NS CA), NSR (2d) 1, [1998] NSJ No 492 (CA), per Cromwell JA
    and R v MacDonald, 2014 NSSC 218 (CanLII), per Arnold J, at para 51


It is insufficient to rely on conclusory statements without any information on the "source or means of knowledge and whether there are any indicia of his or her reliability, such as the supplying of reliable information in the past or confirmation of part of his or her story by police surveillance"[1]

  1. Greffe, ibid.
    see also R v Debot, 1986 CanLII 113 (ON CA), 30 CCC (3d) 207, per Martin JA, at p. 218 ("The underlying circumstances disclosed by the informer for his or her conclusion must be set out, thus enabling the justice to satisfy himself or herself that there are reasonable grounds for believing what is alleged. I am of the view that such a mere conclusory statement made by an informer to a police officer would not constitute reasonable grounds")


It is important that the corroboration relating to details of the offence not simply be neutral facts of a non-criminal nature.[1]

There is nothing wrong with having two informers cross-corroborate each other in assessing whether sufficient grounds exist.[2]

Where the level of detail is low and where credibility cannot be assessed, the obligation on corroboration increases.[3]

Where the reliability of the source is unknown, corroboration is "particularly important". There must be sufficient corroboration "to remove the possibility of innocent coincidence."[4]

Often evidence from surveillance or other investigative tools can corroborate the informer. [5]

  1. e.g. R v Caissey, 2007 ABCA 380 (CanLII), 227 CCC (3d) 322, per Martin JA (dissent), at para 38
  2. R v Evans (E.D.), 2014 MBCA 44 (CanLII), 306 Man R (2d) 9, per Mainella JA, at para 14
  3. R v Debot, 1989 CanLII 13 (SCC), [1989] 2 SCR 1140, per Wilson J
  4. R v Philpott, 2002 CanLII 25164 (ON SC), 101 CRR (2d) 87, per Quinn J, at para 159
  5. R v Izzard, 2014 ONSC 1821 (CanLII), 2014 CarswellOnt 3409, per Wilson J, at para 64 R v Wiley, 1993 CanLII 69 (SCC), [1993] 3 SCR 263, per Sopinka J at p. 170 to 171 (CCC)

Reliability and Credibility

  • Past reliability:[1]
    • Length of time known
    • Frequency of contact
    • # of times paid (before / after incident)
    • # of valid search warrants based on his information
    • Had searches resulted in a seizure of drugs/monies/weapons (If so, in what amount?)
    • Had information resulted in convictions?
    • # of negative, false or inaccurate information?
    • # of cases resulted in dismissed/acquitted/withdrawn
  • Credibility of Informer
    • Did they have pending charges at the time?
    • Non-conclusory information
    • Did they have a criminal record? For offences of dishonesty? If so, how many, and how long ago?
  • Informers source of knowledge
    • 1st, 2nd or 3rd hand information? (3rd degree is as good as anonymous)
    • Freshness of the information
Criminal Record

An informer with a criminal record is quite frequent and expected. The presence of a record should not necessarily negate the value of the information.[2] However, offences such as perjury will likely have an impact on their credibility. [3]


There are a variety of motives to be an informant, including.[4]

  1. Fear such as the threat of incarceration;
  2. Revenge;
  3. Perverse motivation;
  4. Egotistical motivation;
  5. Mercenary motivation such as the receipt of money.
  1. Garofoli - emphasizes past reliability
  2. Robertson c Mohawk Council of Kahnawake, 2010 QCCS 355 (CanLII), per Mayer J, at para 29
  3. R v Pelley, 2002 CanLII 20132 (NL PC), per Gorman J, at para 21
  4. R v Franko, 2012 ABQB 282 (CanLII), 541 AR 23, per Lee J, at para 31

Assessing ITOs

See also: Applying for Judicial Authorizations
Crime Stopper Tips

An ITO can rely on an anonymous crime stopper tip. However, alone they are not normally enough to authorize a warrant as it is not usually possible to assess reliability.[1]

Disclosure of Handler Notes

See also: Crown Duty to Disclose

"Source Handler Notes" (SHR) or "Source Debriefing Notes" (SDR) are records made by source handlers recording their interactions with their designated sources.

SDR and SHR are only disclosable under what is known as a "McKay Order."[2]

Simply classifying materials as "handler notes" does not necessarily afford them the protection of informer privilege.[3]

The burden is upon the accused to demonstrate "that there is a reasonable likelihood that the requested materials will assist the court in the determination of the application."[4]

SHN are "first party disclosure, unless those reports concern only general information unrelated to a particular accused and investigation[5]

SHN/SDNs that were not read by a affiant in swearing are prima facie irrelevant.[6]They may only be disclosed if established as "likely relevant" and are not privileged.[7]

"Sufficient reliability is established, or is not established, by reference to the material filed in support of an application for an authorization"[8]

The defence are not permitted to cross-examine a source handler without first making a "Dawson application."[9]

  1. R v Leipert, 1997 CanLII 367 (SCC), [1997] 1 SCR 281, per McLachlin J
  2. R v Robertson, 2016 BCSC 2075 (CanLII), per Watchuk J, at para 4 ("...the parties entered into the type of disclosure order which was often referred to as a “McKay Order”. Pursuant to that order, the communications between the police handlers and the five sources or confidential informants in the form of handler notes (“SHNs”) and debriefing reports (“SDRs”) were disclosed in a redacted form.")
  3. R v Way, 2014 NSSC 180 (CanLII), 345 NSR (2d) 258, per Arnold J
  4. R v McKenzie, 2016 ONSC 242 (CanLII), 26 CR (7th) 112, per Campbell J, at para 39 ("... before [handler notes] are properly subject to disclosure by the Crown, the onus is upon the accused to first meet the burden of showing that there is a reasonable likelihood that the requested materials will assist the court in the determination of the application ")
    Way, supra, at paras 51, 59, 63, 75, 97
  5. R v McKay, 2015 BCSC 1510 (CanLII), BCJ No 1841, per MacKenzie J, at paras 80 to 81 appealed to 2016 BCCA 391 (CanLII), per Willcock JA (3:0)
  6. R v McKay, 2016 BCCA 391 (CanLII), per Willcock JA (3:0)
  7. McKay, ibid., at para 158
  8. R v Barzal, 1993 CanLII 867 (BC CA), 84 CCC (3d) 289, per curiam
  9. R v Childs, 2016 ONCJ 690 (CanLII), per Campbell J, at paras 3 and 4

See Also

Social Sciences