Informer Privilege

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General Principles

Informer privilege has its origins in the common law as a rule that prohibits the disclosure of an informer's identity in public or in court.

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".

The protection is "almost absolute" and cannot be balanced against other interests of justice. The protection must take the form of “blanket confidentiality”.

Informer privilege applies to oral and documentary evidence in both criminal and civil proceedings.

The judge has no discretion on the application of the privilege. It only has discretion on the measures of how it is protected.

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.

Purpose

Informer privilege is intended to protect informants in order to:

1. "promote the giving of assistance to the police by citizens in the investigation and prevention of crime" and
2. protect informers from possible retribution

The protection does not intend just to protect informers but also their family and friends from retribution.

Generally, the protection is justified to ensure the "performance of the policing function and maintenance of law and order".

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".

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.

Burden of Proof

The Crown has the burden on a balance of probabilities to establish that the source is a confidential informant.

Where it is established that the person is an informer, the determination of the applicability of privilege presumes it applies.

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.

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.

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 privilege can be waived by the informer where he goes from being an informer to entering into the field as a "agent provocateur".

Continuation After Death

The death of the informer does not necessarily terminate the privilege.

The benefit of maintaining privilege after death is that it will have the effect of encouraging people to come forward by keeping it "near absolute". The privilege is meant to protect the family and friends of the informer.

A Police Officer Accused

Where a peace officer is charged with an offence and has knowledge of informer information that would be relevant to the defence of the prosecution, they may not disclose any of that information, even to their own lawyer, without breaching privilege. The only exception would be where innocence-at-stake has been established.

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:

1. age;
2. gender;
3. occupation;
4. socio-economic status;
5. health-related issues;
6. lifestyle choices;
7. associates;
8. connection with the arrest of other persons;
9. dates, times, locations, and the fact of contact with the police as an accused, victim or witness;
10. criminal convictions, discharges, acquittals and withdrawals;
11. 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;
12. geographical areas frequented;
13. length of time in the community;
14. length of time as an informer; and
15. 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.

Enforcement

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.

Procedure

Preventing Disclosure of Informer Privilege

Where defence seek privileged information, the Crown may invoke s. 37(1) of the Evidence Act.

Determining Wether Informer is Police Agent

Where the defence allege the informer is an agent and therefore not protected by privilege, an ex party in camera can be held where defence may file written submissions on the issues and written questions for the informer’s handler. Defence may also be permitted to have an amicus appointed for examination, have a redacted summary of evidence and make oral submissions.

Procedure where ITO Relies on Confidential Informer

When relying on a confidential informer "consideration must be given to whether the information from the informer is compelling, credible or corroborated by other aspects of the police investigation."

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.

Infringement of privilege is “onerous” and requires that the core “issues going to the guilt of the accused are involved and there is a risk of a wrongful conviction”.

There must be “solid evidence” to establish the necessary elements. Speculation will not do.

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:

1. the information is not available from any other source;
2. the accused is otherwise unable to raise a reasonable doubt.

The objective of the second step of the threshold McClure test is to “screen out” attempt to access identity information. It should include consideration of whether:

1. The accused has shown there are no other defences; and
2. 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.

"Scott" Exceptions

There is some suggestion that there could be further exception where:

1. "the informer is a material witness to the crime",
2. where the "informer has acted as agent provocateur", or
3. where "the accused seeks to establish that the search was not undertaken on reasonable grounds".

Procedure

The innocence at stake test requires to steps:

1. first the accused must "show some basis to conclude that without the disclosure sought his or her innocence is at stake";
2. 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

Familiarity

Simply because the accused is physically familiar with the source does not negate privilege.

Inadvertent Disclosure

There is some suggestion that disclosure of identity, whether by accident or otherwise, can render the evidence admissible.

Notoriety Exception

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.

Waiver

Waiver of informer privilege must be "clear, express and informed". There is no authority to suggest there can be "deemed or implicit" waiver.

The Court should not allow inadvertent disclosure to amount to waiver as it would undermine the public policy purpose of the protection.

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.

Material Witness

The information of a "material witness" cannot be privileged. This includes where the witness helped commit the crime or watched the offence occur.