DATE: May 20, 2008
SUBJECT: THE PRIVILEGE ATTACHED TO INFORMATION RESPECTING THE IDENTITY OF CONFIDENTIAL POLICE INFORMANTS
Courts have clearly recognized that confidential police informers play a vital role in law enforcement. The near absolute privilege attached to the identity of these individuals is premised upon the duty of all citizens to aid in enforcing the law and is meant to protect these individuals against retribution from those involved in crime.
This guideline describes the rules and duties that protect, during prosecutions, the identity of those who provide information to the police (“informer privilege”) and the corresponding policies that govern Crown prosecutors.
This guideline must be read and applied in conjunction with the guidelines respecting immunity agreements (Immunity from Prosecution and Other Consideration for Witnesses and Informants) and in-custody informants (In-Custody Informant Evidence).
DEFINITION OF INFORMER PRIVILEGE:
Informer privilege is a right that is broad in scope and near absolute.
The privilege protects the confidentiality of the identity of police informants and has been uniformly upheld by the Courts. The breadth and significance of this rule was described at para. 246 of R. v. Brown 1999 CarwellsOnt 6312 (Ont. S.C.) as follows:
Since the creation of a confidential informant relationship establishes a right of confidentiality as well as a rule of evidence, the improper disclosure of the identity of the confidential informant, advertent or otherwise, necessitates a remedy to enforce and otherwise give recognition to the right. The Courts have a duty to prevent further harm to the individual informant as well as to all prospective or existing informants. Conduct which results in the improper disclosure of a confidential informant's identity cannot be condoned. Nor can further and continued disclosure in the public forum be allowed without violating the public duty owed to the confidential informant. The responsibility of the Court is to prevent further supplementation and confirmation of whatever information has become known and to preserve the sanctity of sources of police information.
The privilege applies to those who provide information about a crime to the police on the understanding that their identities will not be revealed. This was described in paragraphs 4-6 of R. v. Brown 1999 CarwellsOnt 4704 (Ont. S.C.) as follows:
Not everyone who gives information to the police is a confidential informant. It is one thing to be an informant -- it is another thing to be a confidential informant. To be a confidential informant an informant must request the privilege, expressly or by necessary implication, and receive an assurance of confidentiality, expressly or by necessary implication, from the officer. Regard must be had for all of the circumstances of the case. A would be confidential informant does not begin with a right of confidentiality but does have a right to silence. One need not give information to the police. But, if the privilege attaches to the relationship, a right of confidentiality in the confidential informant is created and must be recognized by everyone.
…Accordingly, in determining the existence of the privilege all of the circumstances of the delivery of the information must be considered. The perception of the informant who is giving information to the police is a significant factor. The status and motivation of the person at the material time as a complainant, suspect, arrestee, accomplice or otherwise are also relevant. See Tipene v. Apperley,  1 N.Z.L.R. 761 at 768. Regard must also be had for the conduct of the officer receiving the information and the history of their relationship with one another, if any.
This type of informer is to be contrasted with those who, acting under the direction of the police, obtain and convey to the police information about a crime. This latter type of informer is also a state agent and his or her identity is not protected by informer privilege. In determining whether a person is a state agent, Crown prosecutors must examine the relationship between the informer and the police. In R v Broyles (1991), 68 C.C.C. (3d) 308, the Supreme Court of Canada adopted the following simple test to apply in instances in which the informer receives information directly from an accused: “Would the exchange between the accused and informer have taken place, in the form and manner in which it did take place, but for the intervention of the state or its agents?” If the police direct or influence the course of events between the informer and the accused, it may well be that the person is an agent of the state and is not protected by informer privilege.
Crown prosecutors have a duty to protect the identity of confidential police informants. Once informer privilege is found to exist, neither the Crown nor the police can breach it, and courts are not entitled to balance the benefits enuring from the privilege against countervailing considerations: R. v. Leipert (1997), 112 C.C.C. (3d) 385 (S.C.C.).
As informer privilege belongs to both the Crown and the informer, the Crown cannot waive the privilege without the consent of the informer. Where the privilege is engaged, Crown prosecutors must object to the disclosure of any information that might reveal, even implicitly, the identity of an informer, or his or her status as an informer. Thus, a witness cannot, for example, be asked questions which narrow the field of possible informers such that giving the informer’s name is redundant.
Only the informer can waive his or her privilege and, as stated above, the Crown has a duty to protect the identity of the informer until such waiver is given.
For a court to conclude that privilege has been waived, it must be established that the informant has clearly and unequivocally waived the procedural safeguard and is doing so with full knowledge of the rights that the procedure was enacted to protect and of the effect the waiver will have on those rights in the process. (See, for example, R. v. Nguyen 2001 CarswellOnt 1631 (Ont. SC) at paras. 16-18).
As such, a proper waiver of confidential informant privilege must be “informed.” Therefore, the confidential informant must be told and understand the following.
- What his current status is, if the informant is unclear as to his status.
- He is entitled to the privilege of confidentiality.
- His right to refuse to waive his privilege.
- The consequences of his waiver; that is, that he loses the right to confidentiality and his past related dealings are subject to disclosure. Past, present or future information provided in related investigations will be disclosed along with his identity as the source.
The case law does not require that the confidential informant have counsel present for a valid waiver of privilege. However it would be prudent to offer the informant the option of consulting with independent legal counsel. If the person does not wish to have a lawyer, he should sign a waiver.
While informer privilege applies to witnesses on the stand, issues regarding the identity of informers may arise prior to any court proceedings. For instance, these issues may affect the Crown’s disclosure obligations. As such, as part of their duty to proactively identify problems regarding investigations and to provide Crown prosecutors with timely and complete documentation so as to enable proper Crown prosecutor preparation, the police are to alert the Crown prosecutor as soon as possible in those instances in which the investigation involved the use of informers. This will allow the Crown prosecutor to fully prepare a response to any attempt to elicit information regarding an informer.
INNOCENCE AT STAKE EXCEPTION:
The only exception to the foregoing is the narrow innocence at stake exception: R v. Leipert, supra. In order to raise this exception to informer privilege, there must be a basis in the evidence for concluding that the disclosure of the informer’s identity is necessary so as to demonstrate the innocence of the accused. This evidence must amount to more than mere speculation that the information might assist the defence. The exception may arise in circumstances in which:
- the evidence establishes that the informer is a material witness to a crime;
- the evidence establishes that the informer acted as an agent provocateur; that is where he or she played an instrumental role in the offence;
- the accused seeks disclosure of the materials filed in support of a search warrant or wiretap application so as to establish that the search was not undertaken on reasonable grounds and therefore contravened section 8 of the Charter of Rights and Freedoms. (However, even under this condition, a court must attempt to provide as much evidence as possible to the defence by means of editing the information on which the search warrant was based, without disclosing the identity of the informer. That disclosure should only be made in circumstances where it is absolutely essential.).
“Material witness” has been defined at paragraph 16 of Canada v. Peddle 1996 CarswellNfld 247 (CA):
In Scott it will be noted that the first exception to the general rule of non-disclosure of a police informer is where "the informer is a material witness to the crime". Is there a difference intended between "material witness" and a "material witness to the crime"? Black's Law Dictionary, Revised 4th Edition, gives as one definition of "witness": "in general, one who, being present, personally sees or perceives a thing; a beholder, spectator, or eye witness". However, in Lemay v. R.,  1 S.C.R. 232 at p. 242, Rand, J. comments that:
…material witnesses in this context are those who can testify to material facts....
This statement falls short of saying that a material witness is one who is a "witness" to the crime. It seems apparent, however, that the "material witness" Justice Cory had in mind in Scott, justifying a disclosure of an informer's identity, was an individual who had personal knowledge of the commission of the offence and possessed essential information needed to demonstrate the innocence of the accused. An attempt at a more precise definition may not be beneficial, and probably best left for refinement on the issues and facts of each case. The predicament may not always directly concern indispensable evidence from a material witness to the crime. The issue may also revolve around the accused's right to make full answer and defence or perhaps the right of an accused to a fair trial. All such cases will necessitate a balancing of the public interest in protecting the identity of informers against the interests of the accused.
The definition means that the informer was a material witness and assists in establishing the accused’s innocence.
Exception does not apply to the repeating hearsay information obtained from others or circumstantial evidence. The court will not pierce privilege even if the information might reflect on the credibility of important Crown witnesses.
Even if it is ruled that the innocence at stake exception is established, the Crown prosecutor should only ever reveal as much information as is essential to allow proof of innocence.
Importantly, a judge hearing a preliminary inquiry has no authority to grant relief against informer privilege by recourse to the innocence at stake exception: R. v. Hynes,  3 S.C. R. 623 at para. 33; Re Chambers and the Queen (1985), 20 C.C.C. 440 (Ont. C.A.).
Sometimes trial courts may, notwithstanding the Crown prosecutor’s objection, order that an informer’s identity be revealed or order the informer to appear at court. As there are several options available, the Crown prosecutor should request an adjournment to consider his or her position. The Crown prosecutor must then advise his or her Chief Crown Prosecutor of the issue. The Chief Crown Prosecutor will then decide what course of action should be taken.
The following are the available options:
- Comply with the judge’s ruling after the informer agrees to waive privilege.
The Crown prosecutor may consult with the police and the informer to determine if the informer will waive privilege and, if so, may choose to comply with the judge’s ruling. To be clear however, the Crown is not at liberty to reveal the informer’s identity without the consent of the informer.
- Invoke s. 37 of the Canada Evidence Act.
This provision allows the Crown or other official to object to disclosure on the basis of a specified public interest. The Crown prosecutor can assert this claim; however, it is preferable for a senior police officer to do so: R v. Archer (1989), 47 C.C.C. (3d) 567 (Alta C.A.).
- Stay and re-commence proceeding.
The Supreme Court of Canada in R v Scott (1990), 61 C.C.C. (3d) 300 (S.C.C.) approved of this procedure. This option should rarely be used and only in compelling situations.
- Stay the proceedings, where necessary.