3.11 Informer Privilege

Public Prosecution Service of Canada Deskbook

Guideline of the Director Issued under Section 3(3)(c) of the Director of Public Prosecutions Act

March 1, 2014

Table of Contents

• 1. Introduction
• 2. The Importance of the Privilege
• 3. The Nature of the Privilege
• 4. Statement of Policy
• 5. Operation of the Privilege
• 6. Scope of the Privilege
• 7. Innocence at Stake is the Only Exception
• 8. Situations Where the Privilege Might Not Apply

1. Introduction

This guideline sets out the policy on protecting the identity of informers in prosecutions (“informer privilege”).

2. The Importance of the Privilege

Informer privilege is one of longstanding existence. The modern statement of the privilege dates back to the 19^th century English case of Marks v Beyfus.^{Footnote 1} In R v Leipert^{Footnote 2} the Supreme Court of Canada stressed the significance of the rule in the following terms:

A court considering this issue must begin from the proposition that informer privilege is an ancient and hallowed protection which plays a vital role in law enforcement. It is premised on the duty of all citizens to aid in enforcing the law. The discharge of this duty carries with it the risk of retribution from those involved in crime. The rule of informer privilege was developed to protect citizens who assist in law enforcement and to encourage others to do the same.^{Footnote 3}

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.^{Footnote 4}

The policy reasons that underlie this broad and powerful privilege are two-fold: to protect persons who give information related to criminal matters in confidence to the police from possible retribution and to encourage future potential informers to do the same.

The common law imposes a duty on the police, the Crown and the courts to protect informer privilege.^{Footnote 5} By virtue of the rationale underlying the privilege, police officers, prosecutors and judges cannot weigh, on a case-by-case basis, either the maintenance or the scope of the privilege depending on what risks the informer might face.^{Footnote 6} While a judge is determining whether the privilege applies, all caution must be taken on the assumption that it does apply.^{Footnote 7} Once a judge is satisfied that the privilege exists, a complete and total bar on any disclosure of the informer’s identity applies.^{Footnote 8} The non-discretionary nature of the privilege explains why the rule is referred to as “absolute.”^{Footnote 9}

3. The Nature of the Privilege

Informer privilege is a class privilege. In R v National Post, the Supreme Court of Canada explained the significant features of a class privilege as follows:^{Footnote 10}

“At common law, privilege is classified as either relating to a class (e.g. solicitor and client privilege) or established on a case-by-case basis. In a class privilege what is important is not so much the content of the particular communication as it is the protection of the type of relationship. Once the relevant relationship is established between the confiding party and the party in whom the confidence is placed, privilege presumptively cloaks in confidentiality matters properly within its scope without regard to the particulars of the situation. Class privilege necessarily operates in derogation of the judicial search for truth and is insensitive to the facts of the particular case. Anything less than this blanket confidentiality, the cases hold, would fail to provide the necessary assurance to the solicitor’s client or the police informant to do the job required by the administration of justice.” [underlining added]

4. Statement of Policy

Crown counsel has a duty to protect the identity of informers.^{Footnote 11} Where the privilege applies, unless there is some other evidentiary basis to make an objection, Crown counsel must object to disclosure of information tending to reveal an informer's identity or status as an informer.

Crown counsel should discuss with the investigative agency whether any informer privilege issues are anticipated to arise in a proceeding. Informer issues not only may arise during court proceedings, but also may affect pre-trial disclosure obligations.

Early discussions with investigators will also be beneficial in that counsel can learn the extent of any risk to the informer if disclosure is ordered by the court, determine whether it may be necessary to have a certificate prepared under s. 37 of the Canada Evidence Act,^{Footnote 12} or gather other evidence to support the Crown's objection.^{Footnote 13}

Informer privilege may be invoked under the common law or by relying on s. 37 of the Canada Evidence Act.^{Footnote 14} Generally, Crown counsel should advance their objection on the basis of the common law rule first. It is only where a judge has dismissed Crown counsel’s common law objection and privileged information tending to reveal the identity of an informer is to be released to an accused that the Crown should invoke s. 37 of the Canada Evidence Act.^{Footnote 15} When s. 37 is used the strictness of the informer privilege rule is not relaxed.^{Footnote 16}

Sometimes courts may, contrary to the position taken by the Crown, order the informer's identity revealed or order the informer to appear. Crown counsel has a number of options which may vary depending on the facts of the case and the level of court at which the issue arises:

1. Disclose the information in question in compliance with the judge's ruling but only after fully informed waiver has been provided by both the informer and the Crown, and counsel has determined that it is in the public interest to do so. Before disclosing, counsel must consult with the police to determine if the informer is likely to be subject to retribution if the judge's ruling is followed and, if so, whether the police can provide protection.

Where disclosure is not feasible, Crown counsel may elect one of the following options;

2. invoke s. 37 of the Canada Evidence Act.^{Footnote 17} Crown counsel can assert this claim personally.^{Footnote 18} However, it is preferable for a senior police officer to do so, as occurred in R v Archer;^{Footnote 19}
3. inform the court that counsel declines to comply with the ruling and offer no evidence, as in R v Leipert.^{Footnote 20} The resulting acquittal can be appealed;
4. inform the court that counsel declines to comply with the ruling to disclose and invite the court to enter a judicial stay of proceedings, as in R v Creswell.^{Footnote 21} Also, counsel may stay the proceedings under s. 579 of the Criminal Code where none of the foregoing options is feasible; in exceptional circumstances, counsel may stay and re-commence proceedings, as in R v Scott.^{Footnote 22} The Supreme Court of Canada found that this procedure was justifiable in the unusual circumstances of the case, but it is clearly an extraordinary recourse and should be used only in compelling situations. Counsel considering this option must first consult with the Chief Federal Prosecutor (CFP), who, in turn, may wish to consult with the appropriate Headquarters officials.

5. Operation of the Privilege

Informer privilege is a non-discretionary rule which binds the police, Crown and members of the judiciary.

Crown counsel cannot waive the privilege without the consent of the informer. Once it is established that the privilege exists, the court is bound to apply the rule.^{Footnote 23} Even if Crown counsel does not assert the rule, the court must apply it of its own motion.^{Footnote 24}

6. Scope of the Privilege

Informer privilege is “extremely broad” in its application.^{Footnote 25} It applies to both documentary evidence and oral testimony; and in both criminal and civil proceedings.^{Footnote 26} It is not limited to the courtroom:^{Footnote 27} it also protects against revelation of the informer’s identity in public.^{Footnote 28}

The privilege protects not only the informer's name but also any information that might tend to reveal the identity of the informer.^{Footnote 29} Because the identification of informers can be revealed by seemingly innocuous pieces of information, scrupulous care must be taken in protecting from disclosure any information that may disclose their identity.^{Footnote 30} This includes information that tends to narrow the pool of people who have the same characteristics or identifiers as the informer.^{Footnote 31} Thus, Crown counsel must object to questions which narrow the field of possible informers in a way that may disclose indirectly the informer’s identity.

7. Innocence at Stake is the Only Exception

The only exception to informer privilege is innocence at stake: In Leipert, Named Person and Basi, the Supreme Court of Canada confirmed that the only real exception to informer privilege is “when the innocence of the accused is demonstrably at stake.”^{Footnote 32} The Court also held that no exception exists for full answer and defence or for disclosure under Stinchcombe.^{Footnote 33} All other purported exceptions were held to be either applications of the innocence at stake exception or examples of situations where the privilege does not apply.^{Footnote 34}

When the innocence at stake is alleged, the procedure mandated by R v McClure^{Footnote 35} must be followed. McClure comprises a threshold test and a two-stage innocence at stake test. To satisfy the threshold test, the accused must establish that (1) the information is not available from any other source, and (2) he or she is otherwise unable to raise a reasonable doubt. In R v Brown^{Footnote 36} the Supreme Court stated that the second component of the threshold test was intended to carefully screen requests for access to information that may reveal the identity of an informer. Access is allowed only when (1) the accused has shown that he has no other defence, and (2) the requested information would make a positive difference in the strength of the defence case. If the threshold test is met, the judge must proceed to the following two stages:

• Stage 1 – The accused must demonstrate an evidentiary basis to conclude that information exists that could raise a reasonable doubt as to his guilt; and
• Stage 2 – If the stage 1 test is met, the judge should examine the information to determine whether in fact it is likely to raise a reasonable doubt as to his guilt.

In each instance, an accused must show “some basis” to believe his or her innocence is at stake. If that basis is shown, the court should “only reveal as much information as is essential to allow proof of innocence.”^{Footnote 37}

8. Situations Where the Privilege Might Not Apply

There are situations where informer privilege does not apply, where the information-provider is a police agent or agent provocateur, when the privilege has been waived, or where a person provides information to the police in the absence of a promise or guarantee of confidentiality, either express or implied.^{Footnote 38} In these situations, the information-provider does not have (or, in the case of waiver, no longer has) informer status.

a) Distinguishing Agents from Informers

One of the most difficult problems in this area is determining when the privilege applies to the actions of persons cooperating with the police. Informer privilege does not apply when the information-provider is characterized as a “police agent” or “agent provocateur,” rather than an “informer.”

A helpful explanation of the distinction between informers and agents is found in the Ontario Court of Appeal’s decision in R v Babes:^{Footnote 39}

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.

Generally speaking, passive observers to criminal activities will be considered informers. In contrast, individuals who participate in the criminal activities under investigation as a result of being directed by the police will generally be considered police agents or agents provocateurs. A person may have dual status as a confidential informer and police agent in relation to separate investigations or targets.^{Footnote 40}

b) Waiver of Informer Privilege

The privilege belongs jointly to the Crown and the informer. Neither can waive it without the consent of the other.^{Footnote 41} There is no basis for a deemed or implicit waiver of the privilege. To be operative, consent to waive must be clear, express and informed.^{Footnote 42} Inadvertent disclosure of an informer’s identity does not result in waiver or loss of the privilege.^{Footnote 43}

c) Where Information is Provided in the Absence of a Promise or Guarantee of Confidentiality

Not everybody who provides information to the police thereby becomes a confidential informant. There must be a promise of protection and confidentiality. However, the promise need not be express and may be implicit in the circumstances: Barros, at para 31, R v Named Person B, 2013 SCC 9, at para 18. An implicit promise of informer privilege may arise even if the police did not intend to confer the status or consider the person an informer, so long as the police conduct in all the circumstances could have created reasonable expectations of confidentiality.

In Basi, Fish J. referred to the privilege arising in situations “where a police officer, in the course of an investigation, guarantees protection and confidentiality to a prospective informer in exchange for useful information”.^{Footnote 44} This passage in Basi was relied on by the Ontario Court of Justice in R v Kaboni^{Footnote 45} where a 911 caller provided information to the police regarding a suspected impaired driver. Only later did she request anonymity. The judge held that the 911 caller did not have the status of an informer because she was never promised or guaranteed confidentiality by the police in return for her information. See also R v Chui^{Footnote 46} where the court similarly rejected the notion that a person had the status of an informer where there was nothing in the facts to suggest that the information had been provided in confidence. Kaboni and Chui illustrate unsuccessful attempts by the police to retroactively confer informer status on persons lacking that status at the time they provided police with a statement or other information.

Since the relationship between the police and the informer/agent is crucial to the determination of the person’s status, it is essential that Crown counsel obtain a full understanding of the nature of that relationship from the police. Counsel should discuss the matter with the CFP, or another experienced practitioner.