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| Patrick Ducharme |
“Police agents” often also assist the police. But a bright line distinction must be made between “agents” and “confidential informers”. Only confidential informers are protected by informer privilege. Stated another way, if a court determines that an informer was actually acting in the capacity of a police agent, not only will the identity of the agent be disclosed, it must be disclosed. Sometimes distinguishing between a confidential informant and an agent is challenging. The Court of Appeal for Ontario recently, however, provided some helpful guidance. The court described the difference between the two roles as:
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 disclosed, except for the innocence at stake exception. The identity of an agent is information that may be disclosed.
As such, police agents do not receive the protection of informer privilege. There is nothing to prevent a person participating in the role of a police agent in one investigation from acting as a confidential informer in another unrelated investigation. Only in investigations where the informer is a “confidential informer” will the privilege apply.
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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