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| Patrick Ducharme |
For as long as crime has been investigated, informers have played a significant role in many criminal investigations. In fact, in R. v. Basi1 the Supreme Court of Canada characterized the role of the informer as an “indispensable tool in the detection, prevention and prosecution of crime”.2The Court of Appeal for Ontario in R. v. XY3 referred to informer privilege in the following terms:
Informer privilege provides an all but absolute bar against revealing any information that might tend to identify a confidential informer. Courts have no discretion once the existence of the privilege is established. A Judge is under a duty to protect the informer’s identity. Informer privilege accords no place for judicial balancing of benefits from the privilege against any countervailing considerations.4
Informer privilege is a class privilege. This means informer protection covers everyone who falls within that class. The Supreme Court of Canada in Bisaillon v. Keable5 described the privilege as follows:
The rule gives a peace officer the power to promise his informer’s secrecy expressly or by implication, with a guarantee sanctioned by the law that this promise will be kept even in court, and, to receive in exchange for this promise information without which it would be extremely difficult for him (the police officer) to carry out his duties and ensure that the criminal law is obeyed.6
In one Ontario case the court found that a police officer’s assurance of confidentiality was the key ingredient that transformed an informer into a confidential informer.7 In another case, however, from the same jurisdiction, the court rejected the argument that assurance of confidentiality was necessary for the purpose of determining informer privilege.
Molloy J. in R. v. Thomas8 wrote that, in her opinion, persons who assist the police by providing them with the location from which to conduct surveillance of suspected criminal activity are just as entitled to the protection as persons who assist police by providing information. She concluded that there was no rational basis for distinguishing one from the other. She also concluded that the assurance of confidentiality was not a necessary component of informer privilege.
The Supreme Court of Canada’s decision in Basi is replete with the use of words such as “guarantee”, “exchange” and “bargain” suggesting that informer privilege does, in fact, involve an exchange between the police and the informer and that an assurance of confidentiality is a condition precedent to protecting the identity of the informer. In R. v. XY9 it was the police officer’s assurance to the informer that their confidential discussions were not being recorded that was the foundation of the court’s determination that informer privilege applied. Implicit in this decision is that the police “bargained” with the informer in order to solidify the confidential nature of the information.
As to who holds the privilege, it seems apparent now that informer privilege is actually held by the Crown and the informer such that neither can waive it without the consent of the other.10 Police and prosecutors alike therefore must remember that even the smallest detail has the potential to reveal the identity of a confidential informant and that is why even information provided by anonymous tipsters is handled with particular care.11
Although the rule of informer privilege is virtually ironclad, there is one very narrow exception to the protection of the identity of the informer. In R. v. Leipert the Supreme Court of Canada determined that the privilege would yield to the right of an accused to establish his or her innocence. The exception has come to be known as the “innocence at stake” exception to the informer privilege. Consequently, once a court is satisfied informer privilege applies, the onus shifts to an accused seeking an order disclosing the identity of the informer, to demonstrate, on a balance of probabilities, that the information concerning the informer is necessary to prove his or her innocence.12
In R. v. McClure13 the Supreme Court of Canada found the innocence at state exception in the area of solicitor-client privileged information. The court held that informer privilege should be infringed “only where core issues going to the guilt of the accused are involved and there is a genuine risk of wrongful conviction”.14 It seems clear that our courts will only find the exception to total confidentiality in circumstances where it is absolutely essential to prove one’s innocence.
McLachlin J., as she then was, linked the term “absolutely essential” to the prospect of uncovering the identity of the informer by suggesting that an exception to the privilege should only be found where there is evidence that items seized pursuant to a search warrant were planted by the police in a case involving a warranted search.15 The breach of informer privilege will take place only when absolutely essential to establish innocence.
The above is the an excerpt of Patrick J Ducharme's book, Canadian Criminal Procedure, available at Amazon or in bulk through MedicaLegal Publishing along with Criminal Trial Strategies.
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