DATE: May 20, 2008
SUBJECT: THE PROCEDURE AND CRITERIA GOVERNING THE USE OF IN-CUSTODY INFORMANTS
Evidence of an in-custody informer is admissible in court and can properly form part of the case for the Crown. This kind of evidence should only be adduced where there is a compelling public interest in doing so and after the matter has been thoroughly reviewed.
This guideline must be read and applied in conjunction with the guidelines respecting informer privilege (Confidential Police Informants (Privilege) and immunity agreements (Immunity from Prosecution and Other Consideration for Witnesses and Informants).
For the purposes of this section, an “in-custody informer”, “corroboration” and “consideration” are defined as follows:
An in-custody informer is someone who:
- allegedly receives one or more statements from an accused,
- was in custody at the time that he or she gave information concerning these statements to the police, and
- the statements relate to an offence.
The terms informer or informant in this section mean an in-custody informer.
Corroboration of evidence of an in-custody informer is credible evidence or information available to the Crown prosecutor, independent of the in-custody informer, which significantly supports the position that the in-custody informer is telling the truth regarding the inculpatory aspects of the proposed evidence. Corroboration need not necessarily be admissible evidence or evidence which the Crown prosecutor intends to lead but should be whenever possible.
Consideration includes a benefit or promise to make “best efforts” in return for, or in connection with, the in-custody informer’s testimony in the criminal proceeding in which the prosecutor intends to call him or her as a witness and includes but is not limited to:
- reduction or modification of sentence or charge;
- withdrawal of charges;
- financial assistance or reward;
- amelioration of current or future conditions of incarceration;
- positive submissions with respect to parole;
- any other leniency or benefit;
- the extension of any of the above to any person connected with the in-custody informer.
Principles to Consider in Determining Whether There is a Compelling Public Interest in Relying on the Evidence of an In-custody Informer
The exercise of prosecutorial discretion in favour of relying on the evidence of an in-custody informer will depend upon a determination that there is a compelling public interest in doing so. The evidence of some in-custody informers has been shown to be untruthful and has resulted in miscarriages of justice. Some informers, for example, have shown great ingenuity in securing information thought to be inaccessible to them, while others have converted details communicated by the accused in the context of an exculpatory statement into details that purport to prove the making of an inculpatory statement. The following principles should be considered in that determination:
- By definition, in-custody informers are detained by authorities, either awaiting trial or serving a sentence of imprisonment. As a result, they will often seek some consideration for their participation in the Crown’s case. The danger of an unscrupulous witness manufacturing evidence for personal benefit is a significant one. The Crown prosecutor must be mindful of the potential for corruption or manufacturing of evidence by the in-custody informer in determining what consideration, if any, shall be offered or conferred.
- Police, at the earliest opportunity should provide the Crown prosecutor with information to address all of the matters relating to the assessment of the reliability of the informer. The Crown prosecutor should be satisfied that the background of the informer has been appropriately investigated by police.
- The Crown prosecutor should consult with the police concerning the feasibility and appropriateness of requesting that the in-custody informer consent to a wiretap of a further conversation with the accused, with a view to confirming the information supplied by the in-custody informer.
- The gravity of the offence is always an important factor in assessing the public interest. Gravity alone will not, however, provide sufficient justification for introducing an in-custody informer’s evidence. The pressures created in sensational cases call for heightened scrutiny and increased caution. High profile cases may provide in-custody informers with increased motivation to manufacture evidence as well as easier access to information about the offence.
- Repeated use of the same in-custody informers may decrease their credibility and leave the impression that the in-custody informer is a paid and somewhat unsavoury “professional” witness. Those in-custody informers who have received consideration in the past and are incarcerated in connection with subsequent offences may be motivated to fabricate evidence in exchange for consideration.
- A prosecution based substantially upon the unconfirmed evidence of an in-custody informer will rarely meet the criteria for prosecution. The approval of the Assistant Deputy Minister, Criminal Justice, is required to proceed with or continue with such a prosecution.
- As a result of providing information or evidence to the authorities, the personal safety of in-custody informers is potentially at great risk. This must underlie all decisions made by Crown prosecutors in their dealings with in-custody informers.
Restrictions in Dealing with In-Custody Informers
If an in-custody informer does not intend to testify or to make his or her identity known to the public, then the identity is protected by informer privilege and the Crown prosecutor is not entitled to disclose any information that could expressly or implicitly reveal the informer’s identity. See the guideline respecting informer privilege (Confidential Police Informants (Privilege)).
There is also authority for the position that, if the in-custody informer waives privilege and testifies, he or she cannot be compelled to answer questions regarding other involvement with the police, as an informant, unless privilege is waived regarding that activity [R. v. Basaillon and Keable (1983), 7 C.C.C. (3d) 385 (S.C.C.); R. v. Jack Heyden and William Vanderheyden, (September 15, 1997), unreported (Ont. Ct. Gen. Div.); R. v. Newsome (November 29, 1996), 33 W.C.B. (2d) 120, (1996) Alta. D. Crim. Conv. 5436-01 (Alta. Q.B.)].
Before disclosing any informer’s statement, the Crown prosecutor should advise the informer that he or she has a privilege and advise the informer to seek independent legal advice.
Independent Legal Advice
In many cases in-custody informers will have counsel to assist them in respect of charges they face or related matters. In such cases it is appropriate for the Crown prosecutor and the police to deal with the informer through counsel (to the extent that this is consistent with the informer’s wishes). In any case where an in-custody informer has not waived informer privilege, the Crown prosecutor, with the informer’s consent, should facilitate access to independent counsel.
As stated above, the Crown prosecutor must always consider the potential risk to the in-custody informer’s personal safety. The potential risk to the in-custody informer’s personal safety is a paramount concern in many cases. It therefore, must be made clear to the in-custody informer that his or her security is a paramount and ongoing concern regardless of the outcome of his or her testimony at trial and independent of any negotiated consideration. There may be cases where the degree of risk to the in-custody informer’s safety is acute enough that the public interest weighs against adducing the informer’s evidence. Consideration must also be given to situations where there is a concern for the safety of the immediate family of the in-custody informer.
Assessing the Reliability of an In-Custody Informer as a Witness
In-custody informer evidence requires a rigorous assessment of the informer’s general reliability as well as his or her account of the accused’s alleged statement. Accordingly, the Crown prosecutor prior to submitting the matter for review must consider the following factors. These factors shall also be considered by the Outside Director in determining whether there is a compelling public interest in calling the informer as a witness:
- The extent to which the statement is corroborated in the sense described in the definitions’ section of this policy. Generally, one in-custody informer will not provide confirmation of another;
- The detail contained in the alleged statement -- The statement’s reliability will be bolstered or decreased, depending on the degree to which it contains particular or unusual details. The reliability of the statement will also be enhanced where it leads to the discovery of evidence known only to the perpetrator;
- The degree of access that the informer may have had to external sources of information about the offence, such as media reports or the accused’s copy of the Crown prosecutor brief -- The Crown prosecutor should request that police investigate the informer’s access to other sources of information;
- The informer’s general character -- The informer’s character may be evidenced by his or her criminal record or disreputable, dishonest conduct known to the Crown prosecutor or the police. Conversely, any evidence of good character will also be relevant to the informer’s reliability;
- Any request the informer has made, whether agreed to or not, for consideration in connection with provision of the statement or an agreement to testify;
- Any consideration, known to the Crown prosecutor, offered to or conferred upon the informer by the authorities -- Generally, consideration will be offered or conferred by the Crown prosecutor or the police. The Crown prosecutor should request that police provide a written record itemizing any consideration that they have promised to or conferred upon the informer. Occasionally, police or the Crown prosecutor may be aware of consideration promised or conferred by other persons in authority such as correctional authorities. In such cases, this information should be taken into account in assessing the reliability of in-custody informer evidence. The Crown must also consult with other prosecution agencies to determine whether there has been any such prior consideration granted by the Crown;
- Whether the informer has in the past given reliable information to police or the Crown, if known;
- Whether the informer has given evidence in Court in the past and any judicial findings in relation to the accuracy and reliability of that evidence, if known -- The Crown prosecutor should request that police ask the in-custody informer for information regarding any previous testimony. The Crown must also consult with other prosecution agencies regarding this issue;
- Whether the informer has previously claimed to have received statements while in custody;
- Whether the informer made some written or other record of the words allegedly spoken by the accused and, if so, when the record was made;
- The circumstances under which the informer’s report of the alleged statement was taken -- Crown prosecutors should, for example, consider whether the report was made immediately after the statement was made or to more than one police officer;
- The manner in which the report of the alleged statement was taken by the police -- Crown prosecutors should, for example, consider whether the police made a thorough report of the words allegedly spoken by the accused, and how thoroughly they investigated the circumstances that might suggest opportunity or lack of opportunity by the informer to fabricate a statement;
- Any other known evidence that may attest to or diminish the credibility of the informer, including the presence or absence of any relationship between the accused and the informer.
In-Custody Informer Review by an Outside Director
In every case the decision to use an in-custody informer the Director responsible for the case shall refer the case to an Outside Criminal Justice Director. The Outside Director will decide if there is compelling public interest in presenting the evidence of the in-custody informer. In the event of a disagreement, the matter shall be referred to the Assistant Deputy Minister, Criminal Justice Division for decision.
This process should occur as early in the proceedings as practicable. Any substantial change in circumstances may require the repetition of the process.
Materials to be Submitted to and Considered in a Review
The Crown Prosecutor’s office in question shall provide the following written materials to the Outside Director:
- A detailed synopsis of the allegations;
- The proposed evidence of the in-custody informer;
- All the evidence the Crown prosecutor proposes to rely upon at trial to assist the Outside Director in determining the significance of the in-custody informer evidence to the Crown prosecutor’s case;
- An analysis of the informer’s reliability, addressing the reliability indicia set out above, including any confirmatory evidence or information;
- Any requests for consideration made by the in-custody informer and any consideration promised or conferred by the authorities in exchange for information or testimony pertaining to the offence. This would include any written agreement, if already in existence;
- Antecedents of the informer including, but not limited to:
- the informer’s criminal record
- medical or psychiatric reports where relevant and in possession or control of the Crown
- prior history of reliability in dealing with the police and/or the courts, if known
- The opinion and recommendations of the Crown prosecutor as to the calling of in-custody informer evidence, the importance of such evidence in the prosecution, and the necessity for the use of such evidence.
- The plan for the safety of the in-custody informer.
- The plan of the Crown prosecutor as to disclosure to the defence.
In rare cases, exigent circumstances may prevent the Crown Prosecutor’s office in question from providing the Outside Director with this information. Where exigent circumstances exist, they must be brought to the attention of the Outside Director who will determine the appropriate nature of the review.
The Decision of the Outside Director or the Assistant Deputy Minister
Prosecutorial discretion may only be exercised in favour of adducing the evidence of the in-custody informer where the Outside Director, or the Assistant Deputy Minister on a further review, has determined that there is a compelling public interest in doing so. The deliberations of the Director or the Assistant Deputy Minister underlying that exercise of prosecutorial discretion in individual cases will not be disclosed outside of Alberta Justice, with the exception of advising the police of the decision and the underlying reasons on a confidential basis.
Agreements with In-Custody Informers
Agreement with in-custody informers should comply with the requirements of the guideline regarding immunity agreements (Immunity from Prosecution and Other Consideration for Witnesses and Informants).
Disclosure Respecting In-Custody Informers as Witnesses
The dangers of using in-custody informers in a prosecution give rise to a heavy onus on the Crown prosecutor to make complete disclosure. Complete disclosure is, of course, subject to the safety considerations as set out above. Accordingly, the timing of disclosure is a matter that remains within the discretion of the Crown prosecutor and requires careful review. The safety of an in-custody informer can be endangered if disclosure is made before authorities can attend to providing for his or her personal security. It will therefore be appropriate to confer with police and correctional authorities prior to making disclosure.
The Crown Prosecutor, to ensure disclosure is both full and fair, should make disclosure that includes:
- the criminal record of the in-custody informer including, where reasonably accessible to the police or Crown prosecutor, the factual synopses relating to any convictions;
- any information in the Crown’s possession or control respecting the circumstances in which the informer may have previously testified as a Crown witness, including, at a minimum, the date, location and court where the previous testimony was given;
- any information in the Crown’s possession or control respecting the circumstances in which the informer may have requested that the Crown refrain from fully prosecuting him or her in exchange for the provision of testimony, information, assistance or other forms of cooperation.
- any information in the Crown’s possession or control, including copies of the notes of all police officers, corrections authorities or other persons who participated in, or were present during, any negotiations respecting the following:
- consideration sought by the informer or any person associated with the informer in exchange for the information or evidence at issue in the present case;
- any offers or promises made to the informer or any person associated with the informer in exchange for the information or evidence at issue in the present case;
- any consideration already conferred upon the informer or person associated with the informer in exchange for the information or evidence at issue in the present case.
- any written or other record of an agreement respecting consideration for information or evidence of the in-custody informer in the present case; and
- the circumstances under which the in-custody informer and his or her information came to the attention of the authorities.
If the informer will not be called as a Crown witness a disclosure obligation still exists, subject to the informer’s privilege.
Prosecution of Informer for Giving False Statements
To deter like-minded members of the prison population, the Crown prosecutor should vigorously pursue cases where an in-custody informer has lied either to the authorities or to the court. It may, in such cases, be necessary and appropriate to refer the case to an outside police agency for investigation and an independent Crown prosecutor for advice or prosecution.
Use of Court Process for Incarceration of Informants
No Crown Prosecutor should in any way become involved in, advise in respect to, or countenance the use of any court process without genuine basis, for the purpose of placing an undercover informant into a correctional institution or penitentiary.
Should such a proposal be brought to the attention of any Chief Crown Prosecutor, he should immediately refer the matter to the Assistant Deputy Minister (Criminal Justice) through the appropriate Director.