Informant privilege

R. v. X.Y., 2011 ONCA 259, just release online, strongly affirms and restates informant privilege:

[1]              Informer privilege provides an all but absolute bar against revealing any information that might tend to identify a confidential informer.  Courts have no discretion once the existence of the privilege is established.  A judge is under a duty to protect the informer's identity.  Informer privilege accords no place to judicial balancing of benefits enuring from the privilege against any countervailing considerations.

[2]              The Crown has an obligation similar to that of the court.  Since the privilege is jointly "owned" by the Crown and the informer, the Crown has no right to disclose the informer's identity without the informer's consent.  The principle does not permit the Crown to reveal any information that might tend to identify an informer as part of the Crown's disclosure obligations.

[3]              The appellant invoked informer privilege, more accurately a breach of informer privilege, as the basis upon which to stay a conviction entered at the end of trial.  The trial judge rejected the appellant's claim. The appellant seeks the same remedy on appeal.  For the reasons that follow, the appellant succeeds.

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[15]         It is a well-settled principle of our law that, setting to one side an exception that has no application in this case, informer privilege is absolute.  It is so sacrosanct that even the right to make full answer and defence, of which the right to disclosure is an essential feature, does not alone trigger an exception to informer privilege: R. v. Leipert, [1997] 1 S.C.R. 281, at paras. 23-25; R. v. Basi, [2009] 3 S.C.R. 389, at para. 43. Informer privilege is not a rule of evidence, confined to the courtroom, rather it is an amalgam of an evidentiary rule and a principle of immunity and secrecy at work not only in, but also outside judicial proceedings:  R. v. Barros (2010), 254 C.C.C. (3d) (Alta. C.A.), at paras. 49-52.

[16]         Equally well-established is the principle that the duty imposed to keep an informer's identity confidential applies to the police and to the prosecutor: Re Application to Proceed In Camera, [2007] 3 S.C.R. 253, at para. 26.