The Scope of Confidential Informer Privilege: When Does Informer Privilege Protect Information?

By: Doug Fidler

Introduction

Privileges in Canadian law are aimed at preventing the disclosure of certain information during trials and hearings that could affect their outcome. Confidential informer privilege is a type of privilege that, as outlined in R v Basi, “prohibits disclosure of the identity of confidential informants.”^[i] Cases like Basi expanded on the common law principles of informer privilege. As will be explained, informer privilege is possibly the most protected privilege in Canadian law that is only subject to a single override.

While informer privilege is aimed at the protection of the identity of a person who is a confidential informant, this blog will argue that it would be more accurate to state that informer privilege protects all information that would reveal the identity of an accused. A more accurate definition of informer privilege would help triers of fact and lawyers apply informer privilege in a way that better protects informers and strengthens their trust in the justice system. In that way, it would hopefully encourage more informers to come forward if the guarantee of protection against retaliation were stronger. This idea will be explored through the Ontario Court of Appeal decision in R v A.B. (2024).

Background

Cases about informer privilege are difficult to provide background information on. In R v A.B., the entire background of the case has been redacted using informer privilege.^[ii] The main issue of the case is left visible. The case is:

"…an appeal from conviction on counts of possession of a [privileged] substance for the purpose of trafficking and [privileged]", the appellant asks this court "to set aside the convictions and enter a stay of proceedings because the Crown breached the appellant's confidential informant privilege when it disclosed [subject of disclosure] to a co-accused.”^[iii]

At trial, the judge dismissed an application for a stay of proceedings for the Crown’s breach of informer privilege and applied the wrong standard for determining such a breach.^[iv] The appellant’s application for a stay of proceedings was based on s.24(1) of the Canadian Charter of Rights and Freedoms, which states “anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.”^[v]

The trial judge concluded that any of the appellant’s fears were based on speculation of what may be known by the co-accused. The judge was not satisfied with the argument that the information revealed could be used to infer that the appellant was an informer.^[vi] There was also disagreement between the defence and Crown. Defence counsel informed the Crown of the informer privilege and the concern that if the information was brought to court, it would compromise that privilege. In the back-and-forth email exchange between defence and the Crown, there was a failure by the Crown to recognize informer privilege or the defence’s concern over it.^[vii] In the end, the court ruled in favour of the appellant for a stay of proceedings for abuse of process.^[viii]

Analysis

In dealing with the judge’s dismissal of the application, the Ontario Court of Appeal found that the judge erred and applied the wrong question to the case. The question the judge asked was “whether the information ‘tended to disclose’ the appellant's identity as an informant instead of whether it might tend to do so.”^[ix] The court ruled that the correct approach was the second approach of whether the information might reveal the identity.^[x]

The court discussed the nature of confidential informer privilege. This privilege was described as “near absolute,”^[xi] and only being able to be overridden by a single exception–the “innocence at stake exception.”^[xii] The court also expands the definition of confidential informer privilege to cover information that might be used to identify the identity of an invoker of the privilege. Confidential information protected by informer privilege is subject to the low bar of whether it is relevant to the

case.^[xiii]

The court dealt with the Crown’s failure to recognize the privilege by stating that the Crown has no discretion with informer privilege. Information that could be used to identify an informant may never be disclosed.^[xiv] The Crown cannot ignore concerns about informer privilege as the Crown in A.B. had done.^[xv] The court stated that the Crown counsel is “no ordinary litigant”.^[xvi] The Crown’s loyalty is to the administration of justice, which is to be conducted in a vigorous manner. The way they pursue justice, however, must be done in a fair manner.^[xvii] The Crown in A.B. attempted to push on without considering informer privilege, engaging in reckless behaviour which put the appellant and informer privilege at risk. The Crown had a duty to conduct its advocacy with caution to ensure that informer privilege was not breached.^[xviii]

There are two reasons for why informer privilege is so powerful and why there is an intense need to protect informers. The first is that informers often work alongside criminals and the “best”^[xix] informers are those close to those performing criminal activity. Without informer privilege, by those against whom the informer is providing information on to conduct a reprisal on the informer, placing their life at stake.^[xx] The second reason is that knowledge of these potential reprisals, informers could be less willing to come forward with information. Because of these two reasons, informer privilege is so intense that it can only be waived with the consent of both the defence and the Crown.^[xxi]

Conclusion

The case of A.B. applies previous cases that ruled information that may relate to the identify of an informer in the court of law is

privileged.^[xxii] The court also stated that even seemingly inconsequential information could be used to identify an informer when presented to a co-accused.^[xxiii] This point should be emphasized because, when combined with the possibility of reprisals against the informer, it could place the informer or a non-informer at risk if the information gets out. People engaged in criminal activity are not bound by the same standards of proof as the Canadian justice system. An argument could be made that even the fact that there was an informer should stay as privileged information, as it could prevent associates of an accused, or the accused themselves, from becoming suspicious that someone had spoken to the police. The mere existence of an informer could prompt an accused or their associates that someone within their circle has cooperated with the police.

The case revealed one of the charges against the appellant–that of possession of some kind of illicit drug for the purposes of trafficking. There also seems to be a second charge alongside the trafficking charge, which is privileged.^[xxiv] The number of charges and even the broad specifics of a single charge should also be protected by informer privilege because, the release of this information may identify the confidential informant or put another individual at risk.This may happen when there is someone else close to the informer being charged with similar charges.

In A.B., the court stated that the burden of informer privilege must be embraced by everyone involved but there is a particularly heavy burden on the court, police, and the Crown to protect the information. Even small pieces of information could be used to identify the informer.^[xxv] Arguably, the court revealed a small piece of information that could identify the appellant in this case as outlined in the previous paragraph. If confidential individuals start to be identified and subjected to reprisals from these small slips or technicalities of not being covered by informer privilege, it could freeze the number of informers coming forward. By ensuring that any information relating to the confidential individual is safeguarded by informer privilege, it would ensure that informers continue to contribute to justice and are protected when they put themselves in precarious positions.

Image Description:A person in a suit sits at a desk with a book, their eyes humorously obscured by white blur bars, as if emphasizing anonymity or concealment during a formal proceeding.

Endnotes:

^[i] R v Basi, 2009 SCC 52 at para 2 [Basi], online: https://canlii.ca/t/26mxq

^[ii] R v A.B., 2024 ONCA 111 at paras 3–25 [A.B], online: https://canlii.ca/t/k49zt

^[iii] Ibid at para 1.

^[iv] Ibid at para 26.

^[v] Canadian Charter of Rights and Freedoms, s 24(1), Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, online: https://canlii.ca/t/8q7

l^[vi] A.B., supra note ii at para 31.

^[vii] Ibid at paras 51–56.

^[viii] Ibid at para 75.

^[ix] Ibid at para 33.

^[x] Ibid.

^[xi] Ibid at para 34.

^[xii] Ibid.

^[xiii] Ibid.

^[xiv] Ibid at para 35.

^[xv] Ibid at para 52.

^[xvi] Ibid at para 72.

^[xvii] Ibid at paras 71–72.

^[xviii] Ibid at para 73.

^[xix] Ibid at para 36.

^[xx] Ibid.

^[xxi] Ibid at para 37.

^[xxii] Ibid at para 34.

^[xxiii] Ibid at para 38.

^[xxiv] Ibid at para 1.

^[xxv] Ibid at 38.