Henry Waldock
Last updated: 2014.10.28
This page is under development.
In order for the criminal justice system to work properly, people who fear criminals must be able to provide information to police in secrecy. Therefore, when information is given on condition that the identity of the source will not be revealed, then the law protects the informer's identity with privilege.
"The privilege arises where a police officer, in the course of an investigation, guarantees protection and confidentiality to a prospective informer in exchange for useful information that would otherwise be difficult or impossible to obtain. In appropriate circumstances, a bargain of this sort has long been accepted as an indispensable tool in the detection, prevention and prosecution of crime." Basi 2009 SCC 52
Exceptions are very slim: material witness to the offence, agent provocateur, or "innocence at stake". These all boiled down to the last point: only if an innocent risks conviction should the identity of the informant be revealed. Scott [1990] 3 S.C.R. 979.
This privilege is more important even than the principle that courts should be open. Named Person v. Vancouver Sun, 2007 SCC 43.1. The communications must originate in a confidence that they will not be disclosed;
2. This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties;
3. The relation must be one which in the opinion of the community ought to be sedulously fostered;
4. The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation.
What do you do if the evidence you propose to seize may
be privileged, but you don't know? In Jones
v. A.G. (B.C.) 2007 BCSC 1455 (B.C.S.C.), the defendant argued
that the justice, when issuing a warrant, could not determine the
privilege issue adequately, and that the privilege needed to be
determined in a separate hearing. The court did not decide this
point, but what the defendant suggested was that the seized privileged
information should have been kept in a sealed envelope, and a hearing
should have been held to determine if it could be released.
Mr B, 2013 SCC 9, committed lots of crime with bad folks. When his relationships with them turned sour, he informed on them to a police force.
Those officers treated him as a confidential source. But what he told them related to crimes outside their jurisdiction. They handed him over to Quebec's provincial police force, Surete du Quebec ("S.Q.").
The S.Q. officers arrested him for various crimes. Mr B continued to cooperate, confessing to crimes, and giving statements implicating others. Before most statements, the S.Q. officers promised not to use the evidence he gave against him in any trial, but warned him that they would prosecute him if they obtained independent evidence of his involvement.
The S.Q. officers coded him as an informant. The information proved useful, and charges were laid against other felons. As trial approached, things came to a head. Was he a confidential source, or a compellable witness against the felons he ratted out?
Mr B wanted the anonymity of a confidential source. The police wanted a witness. Which was he?
A judge held a special hearing to determine the question. Mr B's lawyer argued that he was a source. The judge disagreed: Mr B was an opportunist, who sold his information for maximum personal profit. The S.Q. never explicitly promised him confidentiality. He's a witness.
A majority of the Supreme Court of Canada ordered a re-hearing. Maybe the S.Q. never made an explicit promise of confidentiality, but they may have given him that idea by their behaviour. The judges sent the matter back for re-trial: was there an implied promise of confidentiality?
The lesson for police is simply said, but difficult to apply. If you promise confidentiality in exchange for information, it's a promise we can't retract. When the relationship with the source/witness begins, explicitly state whether or not they get anonymity. And beware: "material witnesses" don't enjoy privilege. Tell them if they were part of the crime that they will be compellable witnesses.
This makes the early exchanges difficult: "Q: Am I a confidential source or not? A: It depends on what you tell me."
During the investigation of Thompson, Guilbride and others (2006 BCCA 392) for narcotic importation, police obtained information from a co-conspirator, Snow. Drafting the affidavit in support of wiretap was a challenge. In order to give full disclosure to the authorizing judge, the officers had to identify Snow as an informant, but also name him as an appropropriate target for wiretap. Somehow the affidavit had to name Snow but also prevent the accused from determining his identity as an informer. To solve this, they described him in three different ways, “the third man”, “Snow” and “Informant A”. In the affidavit, they disclosed what paragraphs they intended to edit out for the purposes of disclosure to defence. The trial judge found this was an abuse of process because it gave the impression that one person was really three. The Court of Appeal disagreed because the affidavit never overstated the strength of the available evidence. Read this case if you think you'll ever write wire.
After arresting Mr X.Y.,
2011 ONCA 259, a police officer interviewed him. During the
interview, the suspect asked that the recording equipment be turned
off. The officer left the room, and turned off the primary
recording equipment, but left the secondary system running. Mr X.Y
then explained his activities as a police informer.
The officer obtained a transcript of the full interview, and added it
to the disclosure package. He did nothing to investigate
X.Y.'s allegations that he was a confidential source. He did
nothing to mark the information as special. Crown disclosed it to
defence. At trial,Mr X.Y. applied for a stay of proceedings
because the prosecution had violated his privilege. The trial
judge said "no", but the Court of Appeal disagreed.
At first, this decision confused me. What could be so
objectionable about disclosing to the accused what he knew already -
that he was an informer?
Not mentioned in the decision is whether Mr X.Y. was co-accused with
others. If he was, then it immediately makes sense. The same
disclosure package would have been disclosed to counsel for the
co-accused, and from them to their clients.
Mr X.Y. complained of assaults and threats in jail because he was a
rat.
Informer privilege is serious business. When a suspect identifies
himself as an informer, you're playing with fire. Take steps to
seal that information up. Mark it as privileged material when
disclosing to Crown.
In X.Y.'s case, the Crown should have noticed the problem too.
The duty of protecting privilege belongs to police and Crown.
Mistakes can happen in either office. Only if both partners
independently take responsibility for protecting privileged material can
we have any confidence that we'll succeed in our duty.
If a suspect tries to raise this topic during an investigative
interview, beware. Maybe he's seeking protection. More
probably, he is suggesting a quid
pro quo - "if I tell you about these other crimes, then you'll
go easy on me for this one".
If you want to get a voluntary statement from the suspect about the
offence for which you arrested him, you should stamp out any suggestion
of a deal which involves lenience for the current offence.
Immediately mention that you can't make any promises or deals.
Defer discussions about other crimes until after discussing this
one. "I'm interested in what you have to say about these other
offences. I'll talk about that with you later. But, I can't
promise you anything. I can't make you any special deals. Do
you understand?"
If you decide to turn him into a witness or a source, that's your gamble. It's often a bad one. Consult with senior officers first.
For years, Roy Sundstrom, 2012 BCCA 385 and his common-law wife grew marijuana in a sophisticated operation at their residence. She wanted out of the relationship, but couldn't find a way to tell him. So she ratted him out, on condition that police not identify her as an informant. They got a warrant, but carefully redacted the ITO, so as to conceal her identity. Police told her when they'd execute the warrant; she made sure she left the house that day.
The search turned up evidence showing that both he and she were responsible for the plants.
If the Crown charged only him, it might indicate that she was the source. She was charged too. Police never told the prosecutor that she was the source.
Sundstrom and she hired the same lawyer. Nobody told that lawyer
she was the source. Because she was, the lawyer was actually
acting in a conflict of interest.
Eventually, Mr Sundstrom pleaded guilty, on condition that the prosecution drop the charges against his common-law wife. Crown agreed. She left him. Later, she wrote him a letter confessing her role in the investigation.
This upset Mr Sundstrom. He figured he'd been shafted. He appealed, seeking to withdraw his guilty plea.
He had been shafted. But not by the state. The police and the Crown had an obligation to keep the identity of the source secret. Innocence was not at stake. The guilty plea stood.
The lesson here is that your promise not to reveal identity of a source
creates weird and unpredictable duties. ("In order to protect you,
I'm going to let the Crown charge you with production.") The court
recognizes those duties. Sometimes, the source goes public.
Until they do, you have a heavy obligation to protect the source's
identity from discovery. When the source goes public, your actions
will undergo scrutiny.
You can get a warrant or order to search a lawyer's office or records; but you can't get an order which violates privilege. Where a search risks revealing privileged records to police investigators, the order must include intermediaries who can protect the privilege. This means getting the Law Society involved. The lawyer and the client should be notified of the search; and if they can not, then the Law Society must be informed, and asked to supervise the process.
Lavallee v. Canada (Attorney General), 2002 SCC 61:
In R. v. A.B., 2014 NLCA 8, the police obtained a production order for a lawyer's phone records. The order required the telephone company to provide the records to a police officer who would seal them up pending review by the court. On judicial review, the court quashed this production order because it lacked sufficient safeguards to protect privilege. The phone company should have provided a sealed envelope containing the records. The police should never be placed in a position of saying "trust me, I never looked at the [potentially privileged] records".