Attempts to identify confidential police informant may amount to obstruct justice

R. v. Barros, 2010 ABCA 116 http://bit.ly/9RgNEW , released online this week,  deals with whether a private investigator's attempts to identify a confidential police informer, and his subsequent use of the information he discovered, are criminal in nature.

 

Central to the decision is the role of police informers, and the protections that the system of justice offers to them.   In R. v. Leipert,  [1997] 1 S.C.R. 281 the Supreme Court of Canada confirmed that the identity of police informers, and information which might assist in identifying them, is privileged, and that the privilege overrides the general duty of the Crown set out in R. v. Stinchcombe,  [1991] 3 S.C.R. 326 to disclose all relevant information. The only recognized exception to the privilege is "innocence at stake". The trial judge ruled that the "innocence at stake" exception is not in play in this case: R. v. Barros, 2007 ABQB 546 at para. 21.

 

The Court concluded, somewhat to this author's surprise, that not only is there no right to try to determine who an informer was but that the effort so to do can amount to obstruct justice or extortion.  There is a strong dissent by Justice Berger. 

 

The majority held:

 

 

[41]           To summarize, there is no positive right in the accused to attempt to ascertain the identity of the informer. The right to make full answer and defence does not extend that far. There is no justification for limiting the operation of the privilege to the courtroom; to be effective it must operate in the community at large. Against that legal background, the decisions presently under appeal can be examined.