Criminal Law Notebook

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.[1]

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."[2] It is an "ancient and hallowed protection which plays a vital role in law enforcement".[3]

The protection is "almost absolute" and cannot be balanced against other interests of justice.[4] The protection must take the form of “blanket confidentiality”.[5]

Informer privilege applies to oral and documentary evidence in both criminal and civil proceedings.[6]

The judge has no discretion on the application of the privilege. It only has discretion on the measures of how it is protected.[7]

Privilege is jointly shared between the source and Crown. Consent is required from both parties before waiver can be effected.[8]

Informer privilege protects names and information that “tends to reveal the identity of the informer”.[9] This includes any information that “narrows the pool” of those who have the same characteristics as the informer.[10]

Where the status of privilege is uncertain, the presumption must always be that it applies.[11] Once a judge finds that privilege exists, the protection becomes absolute and no disclosure of identity is permitted.[12]

  1. ↑ R v Durham Regional Crime Stoppers Inc, 2017 SCC 45 (CanLII), [2017] 2 SCR 157, per Moldaver J, at para 11 ("Informer privilege is a common law rule that prohibits the disclosure of an informer’s identity in public or in court.")
  2. ↑ R v National Post, [2010] 1 SCR 477, 2010 SCC 16 (CanLII), per Binnie J, at para 42
  3. ↑ R v Leipert, 1997 CanLII 367 (SCC), , [1997] 1 SCR 281 (CanLII), per McLachlin J, at para 9
  4. ↑ Nissen v Durham Regional Police, 2015 ONSC 1268 (CanLII), per Gray J, at para 1
    Named Person v Vancouver Sun, [2007] 3 SCR 253, 2007 SCC 43 (CanLII), per Bastarache J, 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, 2009 SCC 52 (CanLII), per Fish J, at para 37 ("The informer privilege has been described as ‘nearly absolute'") Leipert, supra, at para 28
    Named Person, supra, 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), per Goodman J, at para 23
  5. ↑ National Post, supra, at para 42
  6. ↑ Named Persons, supra, at para 26
  7. ↑ Bisaillon v Keable, [1983] 2 SCR 60, 1983 CanLII 26 (SCC), per Beetz J, 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, supra, at paras 17, 19, 21, 23, and 1t55c39
    R v Y(X), 2011 ONCA 259 (CanLII), per curiam, at paras 1 to 2, 15
    Humphrey v Archibald et al. (1893), 20 O.A.R. 267 (Ont.C.A.)(*no CanLII links)
    R v Omar, 2007 ONCA 117 (CanLII), per Sharpe JA, at para 37 ("while a court can adopt discretionary measures to protect the identity of the informer, the privilege itself is “a matter beyond the discretion of a trial judge")
  8. ↑ Basi, supra, at para 40
    Leipert, supra, at para 15
  9. ↑ Basillon, supra
  10. ↑ Omar, supra, at para 40
  11. ↑ Named Person, supra, at para 47
    Basi, supra, at para 44
  12. ↑ Named Person, supra{{atsL|1t55c|23|, 30

Purpose

Informer privilege is intended to protect informants in order to: [1]

  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.[2]

Generally, the protection is justified to ensure the "performance of the policing function and maintenance of law and order".[3]

Privilege play an important role "in the solution of crimes and the apprehension of criminals".[4]

The position of an informer is "always precarious and their role is fraught with danger".[5] They are recognized as being at risk of retribution by those who are involved in crime.[6] Retribution will be "often obscenely cruel".[7] Even the perception of someone as an informer may be reason to a person to be targeted for retribution.[8] If they are not protected, the justice system should expect "little assistance" from them.[9]

The privilege has been called the "sacred cornerstone" of the justice system.[10] 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".[11]

  1. ↑ R v X and Y, 2012 BCSC 326 (CanLII), per curiam, at paras 18 to 19
    Named Person v Vancouver Sun, [2007] 3 SCR 253, 2007 SCC 43 (CanLII), per Bastarache J, 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, 1997 CanLII 367 (SCC), , [1997] 1 SCR 281 (CanLII), per McLachlin J, at para 9
  2. ↑ R v Anderson, 2013 SKCA 92 (CanLII), per Ottenbreit JA, at para 142 ("Courts have recognized that protection does not just include the informer personally, but also the family and friends associated with that person. ")
  3. ↑ Named Person, supra (per LeBel J in dissent)
    R v Durham Regional Crime Stoppers Inc, 2017 SCC 45 (CanLII), [2017] 2 SCR 157, per Moldaver J, at para 12
  4. ↑ Leipert, supra, at para 9
  5. ↑ R v Scott, 1990 CanLII 27 (SCC), , [1990] 3 SCR 979 (CanLII), per Cory J, at para 32
  6. ↑ Leipert, supra, at para 9 ("The discharge of this duty carries with it the risk of retribution from those involved in crime.")
  7. ↑ Scott, supra
  8. ↑ R v C(I), 2010 ONSC 3359 (CanLII), [2010] OJ No 2622 (ONSC), per R Clark J
    e.g. R v Mastop, 2012 BCSC 2085 (CanLII), per Dickson J - two murders of persons suspected of being informers.
  9. ↑ Scott, supra, at paras 32, 33 ("The role of informers in drug-related cases is particularly important and dangerous.")
  10. ↑ R v Starr, 2001 MBQB 107 (CanLII), per Keyser J
  11. ↑ 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.[1]

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”.[2]

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."[3]

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.[4] It can apply to anonymous "crime stopper" tips.[5]

Informer privilege can exist by implication where there is a promise "by implication".[6]

There would be no privilege where there is no promise or guarantee for confidentiality.[7]

Who Can Raise It

Where Crown counsel fails to raise informer privilege. The Court must raise it on its own.[8]

Burden of Proof

The Crown has the burden on a balance of probabilities to establish that the source is a confidential informant.[9]

Where it is established that the person is an informer, the determination of the applicability of privilege presumes it applies.[10]

Timing of Agreement

An informer privilege agreement must be agreed upon before the confidential information is shared to be valid.[11]

Who Can Receive Privileged Information

The privilege will equally apply where a source provides information to a state agent other than a peace officer.[12]

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".[13] There is no ability to weigh the privilege against any other interests other than innocence-at-stake.[14] There is no need to show that the informer is actually at risk of harm.[15]

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.[16] However, this does not mean that the privilege will be "lost" due to involvement in other cases.[17] The identity of an agent is disclosable.[18] An informer is someone who “merely furnishes information to police”.[19] 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’.[20]

Privilege will not be found to apply where the source is acting as a police agent or “agent provocateur”.[21]

A person can be both an informer and an agent provocateur in relation to separate investigations.[22]

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. [23] 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.[24]

  1. ↑ Bisaillon v Keable, [1983] 2 SCR 60, 1983 CanLII 26 (SCC), per Beetz J, at p. 105
    R v Basi, 2009 SCC 52 (CanLII), , [2009] 3 SCR 389, per Fish J, at para 36
    R v Barros, 2011 SCC 51 (CanLII), , [2011] 3 SCR 368, per Binnie J, at para 31
  2. ↑ Basi, supra, at para 36
  3. ↑ R v 412 Electronics Corp (1996), 47 C.R.(4th) 20, 108 Man. R. (2d) 32 (MBQB)(*no CanLII links) , per Hanssen J, at p. 26
  4. ↑ Nissen v Durham Regional Police, 2015 ONSC 1268 (CanLII), per Gray J
  5. ↑ R v Leipert, 1997 CanLII 367 (SCC), , [1997] 1 SCR 281 (CanLII), per McLachlin J
  6. ↑ Bisallon, supra
    Barros, supra, at para 31
  7. ↑ Barros, supra, at para 31
    R v Named Person B, [2013] 1 SCR 405, 2013 SCC 9 (CanLII), per Abella J, at para 18
  8. ↑ Basaillon, supra, at p. 93
    R v Schertzer, 2007 CanLII 56497 (ON SC), per Nordheimer J - accused police officer prohibited from raising informer privilege
  9. ↑ Basi, supra, at para 39
    R v Sparks and Ritch, 2020 NSSC 125 (CanLII), per Brothers J, at para 21 ("The Crown has the burden on a balance of probabilities.")
  10. ↑ R v Sandhu, 2020 ONCA 479 (CanLII), per curiam, at para 50 (“ A hearing to determine the applicability of the CI privilege proceeds on the basis that the privilege does, in fact, apply:...”)
    R v Durham Regional Crime Stoppers Inc, 2017 SCC 45 (CanLII), [2017] 2 SCR 157, per Moldaver J, at para 35
    Basi, supra, at para 44
    Named Person v Vancouver Sun, 2007 SCC 43 (CanLII), per Bastarache J, at para 47
  11. ↑ R v Kaboni, 2010 ONCJ 91 (CanLII), per McLeod J
    R v Chui2005 BCSC 353(*no CanLII links)
  12. ↑ R v McLellan, 2013 BCSC 175 (CanLII), per Willcock J - informer provides tip to CRA
  13. ↑ Named Person v Vancouver Sun, [2007] 3 SCR 253, 2007 SCC 43 (CanLII), per Bastarache J, at para 22
  14. ↑ Leipert, supra, at para 14
  15. ↑ 4-12 Electronic Corp, supra ("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")
  16. ↑ Barros, supra, at para 33
    R v Broyles, 1991 CanLII 15 (CanLII), per Iacobucci J, at pp. 607 to 609 - discusses police agents
  17. ↑ Barros, supra, at para 33
    R v Schertzer, 2008 CanLII 1952 (ON SC), per Nordheimer J -- an informer becoming a witness does not waive unrelated informer privilege
  18. ↑ R v Babes, 2000 CanLII 16820 (ON CA), per Morden J, 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.")
  19. ↑ Babes, ibid., at para 10
  20. ↑ Babes, ibid., at para 10
  21. ↑ Barros, supra, at para 31
    R v Named Person B, [2013] 1 SCR 405, 2013 SCC 9 (CanLII), per Abella J, at para 18
  22. ↑ Babes, ibid., at paras 29 to 34
  23. ↑ Named Person B, supra, at paras 23 to 24
  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.[1] This is especially the case in drug trafficking cases.[2]

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".[3]

Privilege prevents disclosure of the protected information both in court and in public.[4]

The Court may decline to consider the Stinchcombe analysis for disclosure where it makes a finding of privilege.[5]

Duties to Protect Privilege

The Court, police and Crown all have a duty not to breach the privilege.[6]

Holder of Privilege

Informer privilege is claimed and held jointly by the Crown and the informer.[7]

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".[8]

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.[9]

The privileged information cannot be shared with the defence until the innocence at stake exception is satisfied.[10]

By incorporating defence counsel in any in camera vetting hearing will amount to disclosure of privileged information. [11]

  1. ↑ R v Grey, 1996 CanLII 35 (ON C.A.), per Laskin JA
  2. ↑ R v Scott, 1990 CanLII 27 (SCC), , 61 CCC (3d) 300, per Cory J
  3. ↑ Unnamed Person v Vancouver Sun, 2007 SCC 43 (CanLII), [2007] 3 SCR 253, per Bastarache J, at paras 19, 21, and 22
    R v Leipert, 1997 CanLII 367 (SCC), , [1997] 1 SCR 281 (CanLII), per McLachlin J, 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
    R v National Post, [2010] 1 SCR 477, 2010 SCC 16 (CanLII), per Binnie J
    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”)
  4. ↑ R v Barros, 2011 SCC 51 (CanLII), per Binnie J, at para 30
    Bisaillon, supra
  5. ↑ e.g. Leipert, supra, at para 36
  6. ↑ Named Person, supra, 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), per curiam, at para 11
    Barros, supra, at para 37
    R v Stinchcombe, [1991] 3 SCR 326, 1991 CanLII 45 (SCC), 68 CCC (3d) 1, per Sopinka J ("In the case of informers the Crown has a duty to protect their identity.")
  7. ↑ R v Basi, 2009 SCC 52 (CanLII), per Fish J, at paras 39 to 40
    Lucas, supra
    R v Leipert, 1997 CanLII 367 (SCC), [1997] 1 SCR 281, (1997), 112 CCC (3d) 385 (SCC), per McLachlin J, 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..")
  8. ↑ Canada (Royal Canadian Mounted Police) v Canada (Attorney General), 2005 FCA 213 (CanLII), per Létourneau JA, 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), per curiam: court prohibited disclosure of privileged documents for a commission of inquiry inquiring into a fatal shooting
  9. ↑ Canada (Royal Canadian Mounted Police) v Canada (Attorney General), supra, at paras 41 and 43
  10. ↑ Hubbard, Law of Privilege, (May 2010) at 2-12
    Basi, supra, at paras 43 to 44
  11. ↑ 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".[1]

The privilege must be waived by both the informer and the Crown.[2]

The waiver must be "clear, express and informed". It cannot be "deemed or implied".[3]

Informer privilege cannot be waived through accidental disclosure.[4]

The privilege can be waived by the informer where he goes from being an informer to entering into the field as a "agent provocateur".[5]

Continuation After Death

The death of the informer does not necessarily terminate the privilege.[6]

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.[7]

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.[8]

  1. ↑ Unnamed Person v Vancouver Sun, 2007 SCC 43 (CanLII), [2007] 3 SCR 253, per Bastarache J, 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.")
  2. ↑ R v Barros, 2011 SCC 51 (CanLII), per Binnie J, at para 35
    R v Basi, 2009 SCC 52 (CanLII), per Fish J, at para 40
    Named Person, supra, at paras 22 to 23
    Leipert, supra, at paras 12 to 15
  3. ↑ Schertzer, supra
    R v X and Y, 2012 BCSC 325 (CanLII), per curiam
    R v Sandham, 2008 CanLII 84098 (ON SC), per Heeney J
  4. ↑ R v Pangman, 2000 MBQB 43 (CanLII), per Krindle J
    Shertzer, supra - identity was revealed in Preliminary Inquiry
    R v Hazelwood, [2000] OJ No 459 (SCJ)(*no CanLII links) , at paras 18-26
    R v Nicholson, [2001] BCJ No 2239 (SC), 2001 BCSC 752 (CanLII), per K Smith J, at paras 15 to 16
    R v Hirschboltz, 2004 SKQB 17 (CanLII), per Hunter J, at paras 26 to 27
    R v Poncelet, 2005 SKQB 493 (CanLII), [2005] SJ No 756 (Sask QB), per Ball J, at para 16
    R v Santos, [2007] OJ No 5235 (ONCJ)(*no CanLII links) , at para 16
    R v Beauchamp, [2008] OJ No 2647 (SCJ)(*no CanLII links) , at para 24
  5. ↑ R v Davies, 1982 CanLII 3809 (ON CA), (1982), 1 CCC (3d) 299, per Lacourciere JA
  6. ↑ R v X, 2008 CanLII 87192 (ON SC), per Thorburn J, at para 38
  7. ↑ R v Anderson, 2013 SKCA 92 (CanLII), per Ottenbreit JA, at paras 141 to 142 ("... Courts have recognized that protection does not just include the informer personally, but also the family and friends associated with that person. Also, it is critical for the police to be able to represent to the potential informers that informer privilege is “nearly absolute”...")
  8. ↑ R v Brassington, 2018 SCC 37 (CanLII), per Abella J

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.[1] It includes "any information that might lead to identification".[2]

Any information that may tend to "narrow the pool" of possible candidates who may be informers is considered privileged.[3]

Judges should not attempt to "step into the mind of the accused" to determine whether any information will reveal information of identity. [4] What may be innocuous to the court or counsel may be of "singular importance".[5]

There mere disclosure of the “existence or absence of a criminal record” may be enough to enable an accused to identify an informer.[6]

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.[7]

An anonymous crime stoppers tips will always be covered by the privilege.[8]

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.[9]

  1. ↑ Unnamed Person v Vancouver Sun, 2007 SCC 43 (CanLII), per Bastarache J, at para 26
  2. ↑ Unnamed Person, ibid., at para 26
  3. ↑ R v Omar, 2007 ONCA 117 (CanLII), per Sharpe J
  4. ↑ R v Talke, 2010 ONSC 2045 (CanLII), per Hemnessy J
  5. ↑ Talke, ibid.
    R v Leipert, 1997 CanLII 367 (SCC), , [1997] 1 SCR 281 (CanLII), per McLachlin J, 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”) R v Garofoli, 1990 CanLII 52 (SCC), (1990), 60 CCC (3d) 161, per Sopinka J, at para 78
    Omar, supra, at para 44
  6. ↑ R v Medina-Mena, 2007 ONCA 377 (CanLII), per curiam
    R v Cater, 2011 NSPC 86 (CanLII), per Derrick J, at para 40
  7. ↑ R v Toews et al, 2005 BCSC 727 (CanLII), per Truscott J
  8. ↑ Leipert, supra, at paras 15 to 19
    R v Way, 2014 NSSC 180 (CanLII), per Arnold J, at para 42
  9. ↑ R v Reid, 2016 ONCA 524 (CanLII), per Watt JA, 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), per Moldaver and Côté JJ, at para 129

Enforcement

The Crown must establish on a balance of probabilities that the information provided by the informer is confidential informant privilege.[1] This requires that the Crown establishes that the informer may be at risk[2] or that the informer was expecting protection.[3]

Courts however are obliged to enforce informer privilege "whether it is claimed or not".[4]

  1. ↑ R v Kaboni, 2010 ONCJ 91 (CanLII), per McLeod J}, at paras 17 to 18
  2. ↑ Kaboni, ibid.
  3. ↑ R v Dougan, 2013 BCPC 319 (CanLII), per Frame J
  4. ↑ R v Barros, 2011 SCC 51 (CanLII), per Binnie J, at para 35
    R v Basi, 2009 SCC 52 (CanLII), per Fish J, at para 38
    Bisaillon, supra, at p. 84

Breach of Privilege

The fact that privileged information is already known by all parties to the proceeding does not eliminate the privilege.[1] Nor can it be grounds to suggest that others should have access to the information.[2] There can be civil liability of a breach of informer privilege.[3]

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.[4]

  1. ↑ R v Schertzer, 2008 CanLII 1952 (ONSC), per Nordheimer J
    R v Beauchamps, 2008 CarswellOnt 3860(*no CanLII links)
  2. ↑ Canada (Royal Canadian Mounted Police) v Canada (Attorney General), 2005 FCA 213 (CanLII), per Létourneau JA, at para 46
  3. ↑ e.g. see Nissen v Durham Regional Police, 2015 ONSC 1268 (CanLII), per Gray J
  4. ↑ R v X, 2011 ONCA 259 (CanLII), per curiam (“[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

Preventing Disclosure of Informer Privilege

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

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.[2] Defence may also be permitted to have an amicus appointed for examination, have a redacted summary of evidence and make oral submissions.[3]

  1. ↑ R v Sandhu, 2020 ONCA 479 (CanLII), per curiam, at para 37 (“The Crown invoked s. 37(1) of the Canada Evidence Act, R.S.C., 1985, c. C-5, to resist the disclosure of any information that might tend to identify the CI and sought summary dismissal of the application based on an affidavit from the CI’s handler at TPS’s Intelligence Services.”)
    Public Interest Privilege
  2. ↑ Sandhu, ibid., at para 39 (“ With the agreement of counsel, the trial judge conducted an in camera and ex parte hearing to determine whether the CI was a police agent. Before the hearing, trial counsel for Sandhu was permitted to file an application record, a book of authorities and written submissions outlining Sandhu’s position on the issues and the outcome of the hearing. Counsel provided the judge with a list of 77 questions to be put to the CI’s handler ... [by the trial judge].“)
  3. ↑ Sandhu, ibid., at para 40

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." [1]

  1. ↑ R v Boussoulas, 2014 ONSC 5542 (CanLII), per Campbell J , 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.[1]

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”.[2]

There must be “solid evidence” to establish the necessary elements. Speculation will not do.[3]

All recognized exceptions to informer privilege will be category of innocence-at-stake.[4]

When innocence at stake is invoked the party seeking to rely on it must establish that:[5]

  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.[6] 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.[7]

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.[8] 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.[9]

A preliminary inquiry judge does not have jurisdiction to grant relief on the basis of innocence at stake.[10]

Mere speculation as to the importance of the evidence is not sufficient to engage the innocence-at-stake exception to informer privilege.[11]

"Scott" Exceptions

There is some suggestion that there could be further exception where:[12]

  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".
  1. ↑ R v Schertzer, 2008 CanLII 1952 (ON SC), per Nordheimer J, at para 11
    R v Leipert, 1997 CanLII 367 (CanLII), 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, [1991] 3 SCR 326, 68 CCC (3d) 1, 1991 CanLII 45 (SCC), per Sopinka J, at 14
  2. ↑ R v Sandhu, 2020 ONCA 479 (CanLII), per curiam, at para 63 (“It is uncontroversial that the standard to be met to pierce CI privilege – the innocence at stake test – is onerous. Infringement should only be permitted where core “issues going to the guilt of the accused are involved and there is a risk of a wrongful conviction””)
    R v Brassington, 2018 SCC 37, , [2018] 2 SCR 617, at para 36(complete citation pending)
    R v McClure, 2001 SCC 14 (CanLII), , [2001] 1 SCR 445, per Major J, at para 47
  3. ↑ Sandhu, supra, at para 64
    Named Person, supra, at para 27
    R v Barros, 2011 SCC 51, [2011] 3 S.C.R. 368, at para. 34
    R v Leipert, 1997 CanLII 367 (SCC), [1997] 1 S.C.R. 281, at para. 21(complete citation pending)
  4. ↑ Named Person, supra, at para 29
  5. ↑ McClure, supra
    Brassington, supra, at para 37
    Named Person, supra, at para 27
    Sandhu, supra, at para 64
  6. ↑ R v Brown, 2002 SCC 32 (CanLII), per Major J, at para 55
  7. ↑ R v Basi, 2009 SCC 52 (CanLII), per Fish J, at para 22
  8. ↑ R v X and Y, 2012 BCSC 325 (CanLII), per curiam, at para 20
    Bisaillon v Keable, 1983 CanLII 26 (SCC), [1983] 2 SCR 60, per Beetz J
    Leipert, supra
    Named Person v Vancouver Sun, supra
    Basi, supra, at para 22
    X and Y, supra
  9. ↑ R v Garofoli, 1990 CanLII 52 (SCC), (1990), 60 CCC (3d) 161, per Sopinka J, at para 193
  10. ↑ R v Richards, 1997 CanLII 3364 (ON CA), per curiam
  11. ↑ Liepert, supra, at para 33
    Barros, supra, at para 34
    R v McClure, 2001 SCC 14 (CanLII), per Major J, at para 47
  12. ↑ R v Scott, 1990 CanLII 27 (SCC), , [1990] 3 SCR 979 (CanLII), per Cory J
    R v Gagnon, 1994 CanLII 6194 (QCCA), per Rousseau-Houle JA following Scott, ibid.
    cf. Bisaillon v Keable, supra and Leipert, supra

Procedure

The innocence at stake test requires to steps:[1]

  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".
  1. ↑ R v Leipert, 1997 CanLII 367 (CanLII), per McLachlin J, at para 33
    R v Yakubu, 2006 CanLII 40783 (ON SC), per Corbett J, at para 20
    R v McClure, 2001 SCC 14 (CanLII), per Major J, at paras 50 to 51

Other Exceptions or Exemptions

Familiarity

Simply because the accused is physically familiar with the source does not negate privilege.[1]

Inadvertent Disclosure

There is some suggestion that disclosure of identity, whether by accident or otherwise, can render the evidence admissible.[2]

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.[3]

  1. ↑ Schertzer, supra
    R v Phillips, 1991 CanLII 11715 (ON SC), (1991) 66 CCC (3d) 140, per Salhany J
    R v Scott, 1990 CanLII 27 (SCC), 61 CCC (3d) 300 (SCC), per Cory J
  2. ↑ R v Samson (1977), 35 CCC(2d) 258 (Que.C.A.), 1977 CanLII 2047 (QC CA), per Montgomery JA - 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), per Boyle J
  3. ↑ R v Hunter, (1987) 1987 CanLII 123 (ON CA), per Cory JA
    R v Mantyka, 1999 CanLII 12414 (SK PC), per Whelan J, at para 22 citing Hunter
    cf. Bisaillon v Keable, [1983] 2 SCR 60, 1983 CanLII 26 (SCC), per Beetz J -- suggests that "notoriety exception" may not have foundation in Canadian law as it is "too vague to be followed"

Waiver

Waiver of informer privilege must be "clear, express and informed".[1] There is no authority to suggest there can be "deemed or implicit" waiver.[2]

The Court should not allow inadvertent disclosure to amount to waiver as it would undermine the public policy purpose of the protection.[3]

However, it has been suggested that where the informant has disclosed his identity to the public, the privilege may no longer exist.[4]

By contrast giving a statement to police that includes privileged information may not amount to waiver.[5]

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.[6]

  1. ↑ R v Schertzer, 2008 CanLII 1952 (ON SC), per Nordheimer J, at para 8
    R v Multani, [1999] O.J. No. 3487 (Q.L.)(O.C.J.(G.D.)), paras. 21a-22(*no CanLII links)
    R v Nicholson, 2001 BCSC 752 (CanLII), per K Smith J, at paras 13 to 16 esp. at 14 ("...the consent must be informed in the sense that the witness knew of his right to refuse to consent to a waiver of the privilege and that he knew of the consequences of a waiver.")
  2. ↑ Schertzer, ibid.
  3. ↑ Nicholson, supra, at para 15 ("...inadvertent disclosure of privileged information could amount to a waiver of the informer privilege would be to undermine the public policy purposes of the privilege ... courts ought not to find that either the Crown or the informer may unwittingly waive the privilege which, after all, is a protection provided for the public benefit, not just for the benefit of the particular informer.")
  4. ↑ R v Wilson, 1995 CarswellOnt 2390, [1995] OJ No 498, 26 W.C.B. (2d) 393(*no CanLII links)
    R v Napiorkowski, 1997 CanLII 1346 (BC SC), per Boyle J
    cf. R v Sandham, 2008 CanLII 84098 (ON SC), per Heeney J
  5. ↑ R v Newsome, [1996] AJ No 1061, 1996 CanLII 10583 (AB QB), per Nash J
    Nicholson, supra
  6. ↑ Sandham, supra, at paras 24 to 28
    Schertzer, supra, at paras 26 to 28

Material Witness

The information of a "material witness" cannot be privileged. [1] This includes where the witness helped commit the crime or watched the offence occur.

  1. ↑ R v X and Y, 2012 BCSC 325 (CanLII), per curiam
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