Canadian Informer Privilege
“Informer privilege imposes a duty on the police, the Crown and the courts not to release any information that risks revealing the identity of a police informer” (David Layton, Canadian Informer Privilege).
The Canadian Informer Privilege law was established to protect the identity of confidential informants (CIs). The criminal justice system often relies on the cooperation of CIs to gather valuable information during investigations.
The leading case in Canada which contains significant statements on the scope and application of the rule is the Supreme Court’s decision in R. v. Leipert, 2. The duty of all citizens to aid in enforcing the law is an ancient practice that the privilege is premised on. With this duty comes the risk of retribution from criminals. The informer privilege law was established not only to protect those citizens who assist in law enforcement but also to encourage others to do the same.
Informer privilege is a class privilege recognized in common law. The court must enforce the privilege whether or not it is claimed, unless both the individual and the Crown waive the privilege. Crown Attorneys have the duty to protect the identity of informers; however issues may arise in the pre-trial disclosure or during the court proceedings where the informer may be revealed.
The privilege may not apply in situations where the accused can show some basis to believe that his or her innocence is at stake by withholding the informer’s identity. Situations where the privilege may not apply are as follows:
- Informer is a material witness to a crime;
- The informer played a role in the offence;
- The accused seeks disclosure of the materials filed, for example, to obtain a search warrant, to prove that the search was not taken on reasonable grounds, breaching Section 8 of the Charter of Rights and Freedoms.
In the above examples, the court should only reveal the relevant information that will prove the innocence of the accused. The privilege also does not apply when the provider is characterized as a ‘state police agent’, rather than ‘informer’.
Courts do have the authority to order the informer’s identity to be revealed. In this case, the Crown Attorney has several options, depending on the level of court:
- Comply with the judge’s ruling;
- Invoke section 37 of the Canadian Evidence Act;
- Stay and re-commence proceedings;
- Terminate the proceedings where necessary.
REX, Agnovi’s investigation and criminal intelligence database software, may be used for storing information on Confidential Informants. With privileged-based access control, sensitive information may be hidden from unauthorized system users.
Information on CIs may be easily redacted/vetted, to ensure that sensitive information is not revealed at disclosure or court time. A full-disclosure package including the CI’s personal information may also be output using REX. Contact Agnovi to receive additional information on our criminal intelligence database software, -REX.
Information for this article was retrieved from the following sources:
“Confidential Informer Privilege”, By David Layton of Ritchie Sandford Barristers & Solicitors, Vancouver, British Columbia, Canada: http://www.cba.org/cba/cle/PDF/CRIM12_Paper_Layton.pdf
“Informer Privilege”. October 1, 2007. http://www.justice.gov.nl.ca/just/prosect/guidebook/020.pdf