- 1 General Principles
- 2 When it Applies
- 3 Effect of Privilege
- 4 Enforcement
- 5 Procedure where ITO Relies on Confidential Informer
- 6 Exception for Innocence at Stake
- 7 Other Exceptions or Exemptions
- 8 Waiver
Informer privilege is a "class privilege" and so "presumptively cloaks in confidentiality matters properly within its scope without regard to the particulars of the situation." It is an "ancient and hallowed protection which plays a vital role in law enforcement".
Informer privilege applies to oral and documentary evidence in both criminal and civil proceedings.
The judge has not discretion on the application of the privilege.
Privilege is jointly shared between the source and Crown. Consent is required from both parties before waiver can be effected.
Informer privilege protects names and information that “tends to reveal the identity of the informer”. This includes any information that “narrows the pool” of those who have the same characteristics as the informer.
Where the status of privilege is uncertain, the presumption must always be that it applies. Once a judge finds that privilege exists, the protection becomes absolute and no disclosure of identity is permitted.
R v National Post,  1 SCR 477, 2010 SCC 16 (CanLII) at para 42
R v Leipert,  1 SCR 281, 1997 CanLII 367 (SCC) at para 9
Nissen v Durham Regional Police, 2015 ONSC 1268 (CanLII) at para 1
Vancouver Sun, supra, at para 4 ("In my view, informer privilege must remain absolute. Information which might tend to identify a confidential informant cannot be revealed, except where the innocence of a criminal accused is at stake.")
R v Basi,  3 SCR 389, 2009 SCC 52 (CanLII), at para 37 ("The informer privilege has been described as ‘nearly absolute'") R v Leipert, supra at para 28
Named Person at paras 19 to 23 ("courts are not entitled to balance the benefits ensuring from the privilege against countervailing considerations")
R v Kosterewa, 2016 ONSC 7231 (CanLII) at para 23
National Post, supra at para 42
Named Persons at para 26
Bisaillon v Keable,  2 SCR 60, 1983 CanLII 26 (SCC) at p. 93 ("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")
Named Person v Vancouver Sun,  3 SCR 253, 2007 SCC 43 (CanLII), at paras 17, 21, 23, and 39
R v Y(X), 2011 ONCA 259 (CanLII) at paras 1 to 2, 15
Humphrey v Archibald et al. (1893), 20 O.A.R. 267 (Ont.C.A.)
Basi, supra at para 40
Leipert, supra at para 15
- Basillon, supra
R v Omar, 2007 ONCA 117 (CanLII) at para 40
Named Person, supra at para 47
Basi, supra at para 44
Named Person, supra at para 23, 30
Informer privilege is intended to protect informants in order to: 
- "promote the giving of assistance to the police by citizens in the investigation and prevention of crime" and
- protect informers from possible retribution
Privilege play an important role "in the solution of crimes and the apprehension of criminals".
The position of an informer is "always precarious and their role is fraught with danger". They are recognized as being at risk of retribution by those who are involved in crime. Retribution will be "often obscenely cruel". Even the perception of someone as an informer may be reason to a person to be targeted for retribution. If they are not protected, the justice system should expect "little assistance" from them.
The privilege has been called the "sacred cornerstone" of the justice system. It is necessary to guarantee the "safety, indeed the lives, not only of the informers but also the undercover police officers will depend on that relationship of trust".
- R v X and Y, 2012 BCSC 326 (CanLII) at paras 18, 19
Named Person v Vancouver Sun,  3 SCR 253, 2007 SCC 43 (CanLII), at para 18 ("Not only does the ban on revealing the informer's identity protect that informer from possible retribution, it also sends a signal to potential informers that their identity, too, will be protected. Without taking away from the particular protection afforded by the rule to an individual informer in a given case, we must emphasize the general protection afforded by the rule to all informers, past and present")
R v Leipert,  1 SCR 281, 1997 CanLII 367 (SCC) at para 9
R v Leipert, supra at para 9
R v Scott,  3 SCR 979, 1990 CanLII 27 (SCC) at para 32 per Cory J
Leipert, supra at para 9 ("The discharge of this duty carries with it the risk of retribution from those involved in crime.")
- Scott, supra
R v C(I), 2010 ONSC 3359 (CanLII),  OJ No 2622 (ONSC)
Scott, supra at para 32, 33 ("The role of informers in drug-related cases is particularly important and dangerous.")
- R v Starr, 2001 MBQB 107 (CanLII)
- Scott, supra
When it Applies
The protection arises when a peace officer promises, either expressly or by implication, to keep the information secret in exchange for the informer to reveal the information.
A privilege agreement arises where a peace officer during the course of an investigation “guarantees protection and confidentiality to a protective informer in exchange for useful information”.
The privilege will be "triggered whenever it is established that public law enforcement officials have learned the identity of an informer in the course of their investigative duties. It is not necessary for the crown to establish the informant expected his or her identity to remain confidential."
Informer privilege does not merely apply to "coded" or paid informers. It can equally apply where a police officer promises to the individual that it is "between you and me", that it does not get disclosed to anyone. It can apply to anonymous "crime stopper" tips.
Informer privilege can exist by implication where there is a promise "by implication".
There would be no privilege where there is no promise or guarantee for confidentiality.
Who Can Raise It
Where Crown counsel fails to raise informer privilege. The Court must raise it on its own.
Timing of Agreement
An informer privilege agreement must be agreed upon before the confidential information is shared to be valid.
Who Can Receive Privileged Information
The privilege will equally apply where a source provides information to a state agent other than a peace officer.
Prohibition of Weighing Interests
In light of the important objectives of this privilege, there is no ability to weigh "on a case-by-case basis the maintenance or scope of the privilege depending on what risks the informer might face". There is no ability to weigh the privilege against any other interests other than innocence-at-stake. There is no need to show that the informer is actually at risk of harm.
Informer vs Agent
Informer privilege does not apply where the supposed informer is "agent provocateur", a material witness to a crime, or a police agent. However, this does not mean that the privilege will be "lost" due to involvement in other cases. The identity of an agent is disclosable. An informer is someone who “merely furnishes information to police”. An “agent” is one who “acts on the direction of the police and goes ‘into the field’ to participate in illegal transaction in some way’.
Privilege will not be found to apply where the source is acting as a police agent or “agent provocateur”.
A person can be both an informer and an agent provocateur in relation to separate investigations.
Transference of Privilege
Police forces are not unified in a way that binds all police forces to provide the protections associated with privilege where one force makes such an agreement.  However, where the informer has reasonable grounds to believe that his protection will continue to apply when he gives information to a second police force, the protection will continue.
Bisaillon v Keable,  2 SCR 60, 1983 CanLII 26 (SCC) at p. 105
R v Basi, supra at para 36
R v Barros,  3 SCR 368, 2011 SCC 51 (CanLII), at para 31
Basi, supra at para 36
- R. v 412 Electronics Corp. (1996), 47 C.R.(4th) 20, per Hanssen J. at p. 26
- Nissen v Durham Regional Police, 2015 ONSC 1268 (CanLII)
R v Leipert,  1 SCR 281, 1997 CanLII 367 (SCC) per McLachlin J
Barros, supra at para 31
Barros, supra at para 31
R v Named Person B,  1 SCR 405, 2013 SCC 9 (CanLII) at para 18
Basaillon, supra at para 93
R v Schertzer, 2007 CanLII 56497 (ON SC) - accused police officer prohibited from raising informer privilege
R v Kaboni, 2010 ONCJ 91 (CanLII)
R v Chui, 2005 BCSC 353(*no link)
- R v McLellan, 2013 BCSC 175 (CanLII) - informer provides tip to CRA
Named Person v Vancouver Sun,  3 SCR 253, 2007 SCC 43 (CanLII) at para 22
Leipert, supra at para 14
- R v 4-12 Electronic Corp (1996) 47 CR (4th) 20, 108 Man. R. (2d) 32 (MBQB)(*no link) ("I am satisfied that there is no obligation upon the Crown to show that the informers are at risk or will suffer some prejudice in order for the informer privilege to apply")
Barros, supra at para 33
R v Broyles, 1991 CanLII 15 (SCC),  3 SCR 595 at p. 607 to 609 - discusses police agents
Barros at para 33
R v Schertzer, 2008 CanLII 1952 (ON SC) -- an informer becoming a witness does not waive unrelated informer privilege
R v Babes, CanLII 16820 (ON CA) at para 10 ("In general terms, the distinction between an informer and an agent is that an informer merely furnishes information to the police and an agent acts on the direction of the police and goes “into the field” to participate in the illegal transaction in some way. The identity of an informer is protected by a strong privilege and, accordingly, is not disclosable, subject to the innocence at stake exception. The identity of an agent is disclosable.")
Babes, ibid. at para 10
Babes, ibid. at para 10
Barros at para 31
Named Person B, 2013 SCC 9 at para 18
Babes, ibid. at paras 29 to 34
R v Named Person B,  1 SCR 405, 2013 SCC 9 (CanLII) at para 23 to 24
Named Person B, ibid. at para 24
Effect of Privilege
It is generally said that the prosecution does not need to disclose the identity of the police informer or provide information that may disclose the identity. This is especially the case in drug trafficking cases.
As a class privilege, once the privilege is found, Courts have no discretion whether to balance it against any other interests except those of "innocence at stake".
Privilege prevents disclosure of the protected information both in court and in public.
The Court may decline to consider the Stinchcombe analysis for disclosure where it makes a finding of privilege.
Duties to Protect Privilege
The Court, police and Crown all have a duty not to breach the privilege.
Holder of Privilege
Informer privilege is claimed and held jointly by the Crown and the informer.
Distribution of Privileged Information
Privileged information must be kept secret and only shared with members of the police force on a "need to know" basis for "law enforcement purposes as required in the context of police informer privilege".
The "Crown" who is privy to the information should be interpreted narrowly as referring "to those persons who are directly involved in the enforcement of the law" including "police officers and Crown prosecutors who assume" these responsibilities.
The privileged information cannot be shared with the defence until the innocence at stake exception is satisfied.
By incorporating defence counsel in any in camera vetting hearing will amount to disclosure of privileged information. 
- R v Grey, 1996 CanLII 35 (ON C.A.)
- R v Scott 1990 CanLII 27 (S.C.C.), (1990), 61 CCC (3d) 300 (S.C.C.)
Unnamed Person at para 19, 21, and 22
R v Leipert,  1 SCR 281, 1997 CanLII 367 (SCC) at para 14 ("In summary, informer privilege is of such importance that it cannot be balanced against other interests. Once established, neither the police nor the court possesses discretion to abridge it. "), see also para 12
National Post,  1 SCR 477, 2010 SCC 16 (CanLII)
Bisaillon (“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”)
Barros at para 30
- e.g. Leipert, supra at para 36
Named Person at para 21 ("...the duty of a Court not to breach the privilege is of the same nature as the duty of the police or the Crown")
Leipert, supra at para 10
R v Lucas, 2014 ONCA 561 (CanLII) at para 11
R v Barros,  3 SCR 368 at para 37
Leipert, supra at para 10
R v Stinchcombe,  3 SCR 326, 1991 CanLII 45 (SCC), 68 CCC (3d) 1 ("In the case of informers the Crown has a duty to protect their identity.")
R v Basi, supra at para 39, 40
R v Lucas, supra
R v Leipert 1997 CanLII 367 (SCC),  1 SCR 281, (1997), 112 CCC (3d) 385 (S.C.C.) at para 15 ("The privilege belongs to the Crown...However, the Crown cannot, without the informer's consent, waive the privilege either expressly or by implication by not raising it... In that sense it belongs to the informer..")
Canada (Royal Canadian Mounted Police) v Canada (Attorney General), 2005 FCA 213 (CanLII) at para 46 (only those "who need to know such information for law enforcement purposes as required in the context of police informer privilege") and 48
see also: Royal Canadian Mounted Police v Saskatchewan (Commission of Inquiry), 1992 CanLII 8294 (SK CA): court prohibited disclosure of privileged documents for a commission of inquiry inquiring into a fatal shooting
Canada (Royal Canadian Mounted Police) v Canada (Attorney General), supra at paras 41 and 43
Hubbard, Law of Privilege, (May 2010) at 2-12
R v Basi, supra at paras 43 to 44
- R v Basi, supra
Duration of Privilege and Waiver
A judge had discretion to decline to apply the privilege where "there is no longer any need to protect the informer's identity".
The privilege must be waived by both the informer and the Crown.
The waiver must be "clear, express and informed". It cannot be "deemed or implied".
Informer privilege cannot be waived through accidental disclosure.
The death of the informer does not necessarily terminate the privilege.
The privilege can be waived by the informer where he goes from being an informer to entering into the field as a "agent provocateur".
- Unnamed Person v Vancouver Sun, 2007 SCC 43 (CanLII),  3 SCR 253 at para 100 ("In my view, on a proper interpretation of informer privilege, the trial judge has at all times a discretion to decline to apply the privilege where an attempt is being made to divert it from its purpose or where there is no longer any need to protect the informer’s identify…the rule of confidentiality resulting from the privilege is not an end in itself.")
Barros, supra at para 35
Basi, supra at para 40
Named Person, supra at paras 22-23
Leipert, supra at paras 12 to 15
R v Schertzer, supra
R v X and Y, 2012 BCSC 325 (CanLII)
R v Sandham, 2008 CanLII 84098 (ON SC)
R v Pangman, 2000 MBQB 43 (CanLII)
R v Shertzer, supra - identity was revealed in Preliminary Inquiry
R v Hazelwood,  OJ No 459 (SCJ) at paras 18-26
R v Nicholson,  BCJ No 2239 (SC) at paras 15-16
R v Hirschboltz, 2004 SKQB 17 (CanLII) at paras 26-27
R v Poncelet, 2005 SKQB 493 (CanLII),  SJ No 756 (Sask QB) at para 16
R v Santos,  OJ No 5235 (ONCJ) at para 16
R v Beauchamp,  OJ No 2647 (SCJ) at para 24
R v X, 2008 CanLII 87192 (ON SC), at para 38
R v Davies (1982), 1 CCC (3d) 299(*no link)
Subject-matter of Privilege and Redaction
The privilege "is extremely broad in its application". It applies to oral and documentary evidence irrespective of whether the informer is participating in the hearing at all or whether it is a criminal or civil hearing. It includes "any information that might lead to identification".
Any information that may tend to "narrow the pool" of possible candidates who may be informers is considered privileged.
Judges should not attempt to "step into the mind of the accused" to determine whether any information will reveal information of identity.  What may be innocuous to the court or counsel may be of "singular importance".
There mere disclosure of the “existence or absence of a criminal record” may be enough to enable an accused to identify an informer.
There are several recognized categories of information that will tend to identify the informer:
- socio-economic status;
- health-related issues;
- lifestyle choices;
- connection with the arrest of other persons;
- dates, times, locations, and the fact of contact with the police as an accused, victim or witness;
- criminal convictions, discharges, acquittals and withdrawals;
- any indication that the informer is or has been bound by a recognizance, undertaking, probation order or prohibition order, or is or has been on parole;
- geographical areas frequented;
- length of time in the community;
- length of time as an informer; and
- motivation for providing information.
Courts have permitted defence counsel to ask a witness whether they have been an informer in the past and details about any history as an informer to support the theory that the witness invented the allegation of a drug rip off against the accused in expectation of receiving money.
An anonymous crime stoppers tips will always be covered by the privilege.
Difficulty of Vetting
It is virtually impossible for a court to be able to discern on their own what details may reveal the identity of the informer.
Unnamed Person v Vancouver Sun, 2007 SCC 43 (CanLII) at para 26
Unnamed Person, ibid. at para 26
- R v Omar, 2007 ONCA 117 (CanLII)
R v Talke, 2010 ONSC 2045 (CanLII)
R v Leipert,  1 SCR 281, 1997 CanLII 367 (SCC), at paras 16, 35 (“An accused may know that only a very small circle of persons, perhaps only one, may know an apparently innocuous fact that is mentioned in the document, and therefore privilege must be respected scrupulously”) Garofoli at para 78
R v Omar, 2007 ONCA 117 (CanLII) at para 44
R v Medina-Mena, 2007 ONCA 377 (CanLII)
R v Cater, 2011 NSPC 86 (CanLII), at para 40
- R v Toews et al 2005 BCSC 727 (CanLII)
Leipert, supra at paras 15 to 19
R v Way, 2014 NSSC 180 (CanLII) at para 42
R v Reid, 2016 ONCA 524 (CanLII) at para 82
Leipert, supra at para 28 (It is "virtually impossible for the court to know what details may reveal the identity of an anonymous informer")
World Bank Group v Wallace, 2016 SCC 15 (CanLII) at para 129
The Crown must establish on a balance of probabilities that the information provided by the informer is confidential informant privilege. This requires that the Crown establishes that the informer may be at risk or that the informer was expecting protection.
Courts however are obliged to enforce informer privilege "whether it is claimed or not".
Breach of Privilege
The fact that privileged information is already known by all parties to the proceeding does not eliminate the privilege. Nor can it be grounds to suggest that others should have access to the information. There can be civil liability of a breach of informer privilege.
A breach of privilege may have a "significant impact on future disclosures by current and prospective informers to the detriment of the administration of justice overall" resulting in a stay of proceedings.
R v Schertzer, 2008 CanLII 1952 (ONSC)
R v Beauchamps, 2008 CarswellOnt 3860
Canada (Royal Canadian Mounted Police) v Canada (Attorney General), 2005 FCA 213 (CanLII) at para 46
- e.g. see Nissen v Durham Regional Police, 2015 ONSC 1268 (CanLII)
R v X, 2011 ONCA 259 (CanLII) (“[o]fficial conduct such as occurred here could have a significant impact on future disclosures by current and prospective informers to the detriment of the administration of justice overall.”)
Procedure where ITO Relies on Confidential Informer
When relying on a confidential informer "consideratiom must be given to whether the information from the informer is compelling, credible or corroborated by other aspects of the police investigation." 
- R v Boussoulas, 2014 ONSC 5542 (CanLII) at para 22
Exception for Innocence at Stake
The only exception to the privilege on the basis of "innocence at stake". Right to full answer and defence does not apply.
All recognized exceptions to informer privilege will be category of innocence-at-stake.
When innocence at stake is invoked the party seeking to rely on it must establish that:
- the information is not available from any other source;
- the accused is otherwise unable to raise a reasonable doubt.
The objective of the second step of the threshold MClure test is to “screen out” attempt to access identity information. It should include consideration of whether:
- The accused has shown there are no other defences; and
- the requested information would make a positive difference in the defence’s case.
There is no balancing between informer privilege and the public interest factors such as those found in s. 37(5) of the Evidence Act.
The court will only order the disclosure of the identity if it is needed to show the innocence of an accused person, known as the "innocence at stake" exception. This can apply where the informer is a material witness to the offence. The determination requires balancing of the relevance of the identity of the informer and the prejudice to the informer and public interest in law enforcement.
A preliminary inquiry judge does not have jurisdiction to grant relief on the basis of innocence at stake.
Mere speculation as to the importance of the evidence is not sufficient to engage the innocence-at-stake exception to informer privilege.
There is some suggestion that there could be further exception where:
- "the informer is a material witness to the crime",
- where the "informer has acted as agent provocateur", or
- where "the accused seeks to establish that the search was not undertaken on reasonable grounds".
R v Schertzer, 2008 CanLII 1952 (ON SC) at para 11 per Nordheimer J
R v Leipert, 1997 CanLII 367 (SCC),  1 SCR 281 per McLachlin J
Named Person v Vancouver Sun, 2007 SCC 43 (CanLII) per Bastarache J at para 28
Marks v Beyfus (1890), 25 Q.B.D. 494 (C.A.); Hardy, 24 St.Tr. 199 - ("if upon the trial of a prisoner the judge should be of the opinion that the disclosure of the name of the informant is necessary or right in order to shew the prisoner's innocence, then one public policy is in conflict with another public policy, and that which says that an innocent man is not to be condemned when his innocence can be proved is the policy that must prevail.") R v Stinchcombe,  3 SCR 326, 68 CCC (3d) 1 at 14
Named Person at para 29
- R v McClure,  1 SCR 445, 2001 SCC 14 (CanLII)
R v Brown,  2 SCR 185, 2002 SCC 32 (CanLII) at para 55
R v Basi,  3 SCR 389, 2009 SCC 52 (CanLII) at para 22 per Fish J
R v X and Y, 2012 BCSC 325 (CanLII) at para 20
Bisaillon v Keable, 1983 CanLII 26 (SCC),  2 SCR 60
Named Person v Vancouver Sun, supra
R v Basi, 2009 SCC 52 (CanLII) at para 22
R v X and Y, supra
- R v Garofoli 1990 CanLII 52 (SCC), (1990), 60 CCC (3d) 161 at para 193
- R v Richards, 1997 CanLII 3364 (ON CA)
Liepert, supra at para 33
Barros, supra at para 34
McClure, 2001 SCC 14 (CanLII) at para 47
R v Scott,  3 SCR 979, 1990 CanLII 27 (SCC) per Cory J
R v Gagnon, 1994 CanLII 6194 (QCCA) following Scott, ibid.
c.f. Bisaillon v Keable, supra and Leipert, supra
The innocence at stake test requires to steps:
- first the accused must "show some basis to conclude that without the disclosure sought his or her innocence is at stake";
- If established "the court may then review the information to determine whether, in fact, the information is necessary to prove the accused's innocence." The Court must only reveal such information that is "necessary" or "essential to allow proof of innocence".
Other Exceptions or Exemptions
Simply because the accused is physically familiar with the source does not negate privilege.
There is some suggestion that disclosure of identity, whether by accident or otherwise, can render the evidence admissible.
Where the identity of the informer is so "notorious in the community" or "so well-known" that the identity would no longer be an issue, the privilege will not stand.
R v Phillips (1991) 66 C.C.C. (3d) 140
R v Scott, 1990 CanLII 27 (SCC), 61 C.C.C. (3d) 300 (S.C.C.)
R v Samson (1977), 35 C.C.C.(2d) 258 (Que.C.A.) - the accused peace officer testifies in his trial and states the name of an informer. Court found name still admissible.
R v Napiorkowski, 1997 CanLII 1346 (BC SC)
R v Hunter, (1987) 1987 CanLII 123 (ON CA) per Cory J
R v Mantyka, 1999 CanLII 12414 (SK PC) at para 22 citing Hunter
c.f. Bisaillon v Keable,  2 SCR 60, 1983 CanLII 26 (SCC) -- suggests that "notoriety exception" may not have foundation in Canadian law as it is "too vague to be followed"
However, it has been suggested that where the informant has disclosed his identity to the public, the privilege may no longer exist.
By contrast giving a statement to police that includes privileged information may not amount to waiver.
Scope of Waiver
Waiver of privilege in relation to a proceeding does not amount to waiver of privilege in relation to all matters and investigations.
R v Schertzer, 2008 CanLII 1952 (ON SC) at para 8
- Schertzer, ibid.
R v Wilson, 1995 CarswellOnt 2390,  O.J. No. 498, 26 W.C.B. (2d) 393
R v Napiorkowski, 1997 CanLII 1346 (BC SC)
c.f. R v Sandham, 2008 CanLII 84098 (ON SC)
R v Newsome,  A.J. No. 1061
R v Nicholson, 2001 BCSC 752 (CanLII)
Sandham, supra at paras 24 to 28
Schertzer, supra at paras 26 to 28
The information of a "material witness" cannot be privileged.  This includes where the witness helped commit the crime or watched the offence occur.
- R v X and Y, 2012 BCSC 325 (CanLII)