Informant privilege

R. v. Barros, 2011 SCC 51 deals with whether informant privilege bars attempts, outside of the court system, to identify an informant. The Court holds such attempts are not barred and in so doing provides a helpful discussion of the privilege:

Analysis

[28]                          The right of an accused to do what he or she can to make full answer and defence is fundamental to criminal justice.  Yet informer privilege has been recognized at least since The Trial of Thomas Hardy for Treason (1794), 24 St. Tr. 199, as an essential element in the investigation of crime and the protection of the public.  Once informer privilege is found to exist, no exception or balancing of interests is made except "if upon the trial of a prisoner the judge should be of opinion that the disclosure of the name of the informant is necessary or right in order to show the prisoner's innocence" (Marks v. Beyfus (1890), 25 Q.B.D. 494 (C.A.), at p. 498; R. v. Leipert, [1997] 1 S.C.R. 281, at paras. 23-24; and R. v. Basi, 2009 SCC 52, [2009] 3 S.C.R. 389, at para. 43).  However, precisely because informer privilege can place a significant limitation on the activities of the defence, it is important not to extend its scope beyond what is necessary to achieve its purpose of protecting informers and encouraging individuals with knowledge of criminal activities to come forward to speak to the authorities.

[29]                          In order to assess the ramifications of the extension of informer privilege endorsed by the majority in the Alberta Court of Appeal, it is convenient to set out some of the broad parameters of the relevant law as it presently exists.

A.   The Importance of Informer Privilege

[30]                          Police rely heavily on informers.  Because of its almost absolute nature, the privilege encourages other potential informers to come forward with some assurance of protection against reprisal.  A more flexible rule that would leave disclosure up to the discretion of the individual trial judge would rob informers of that assurance and sap their willingness to cooperate.  See Bisaillon v. Keable, [1983] 2 S.C.R. 60; R. v. Hunter (1987), 57 C.R. (3d) 1 (Ont. C.A.); R. v. Scott, [1990] 3 S.C.R. 979; Named Person v. Vancouver Sun, 2007 SCC 43, [2007] 3 S.C.R. 253; Leipert; and Basi.  The obligation to protect confidential sources clearly goes beyond a rule of evidence and is not limited to the courtroom.  As the trial judge in this case put it, "[t]he police need help, but people who are available to provide information typically won't give that information to the police unless they are protected" (A.R., at p. 7).

[31]                          Of course, not everybody who provides information to the police thereby becomes a confidential informant.  In a clear case, confidentiality is explicitly sought by the informer and agreed to by the police.  As noted in Basi, at para. 36:

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.

Bisaillon, however, added that the promise need not be express.  It may be implicit in the circumstances:

The rule gives a peace officer the power to promise his informers secrecy expressly or by implication, with a guarantee sanctioned by the law that this promise will be kept even in court, and to receive in exchange for this promise information without which it would be extremely difficult for him to carry out his duties and ensure that the criminal law is obeyed.  [Emphasis added; p. 105.]

[32]                          A claim to informer status is always open to challenge by the defence.  The Crown is better able to meet that challenge if it can point to clear evidence of informer status being conferred explicitly rather than after-the-fact supposition.  Keeping in mind that informer's privilege was created and is enforced as a matter of public interest rather than contract, it might be argued that in a situation of serious potential danger, the informer privilege (or other public interest privilege) might apply even in the absence of the contract-type elements of offer and acceptance.  However, that question does not arise on the facts of this case and I say no more about the issue.

[33]                          Unfounded claims to different types of privilege are made from time to time and, as counsel for Mr. Barros points out, there have been cases where the police have claimed informer status in manifestly inappropriate circumstances; see, e.g., R. v. McCormack, 2009 CanLII 76382 (ON SC).  It would not, I think, be in the interest of justice to accept the proposition of the majority in the Alberta Court of Appeal that would prevent an accused from ascertaining independently of the state whether facts for such a challenge exist.  No protection is afforded to a "source" whose conduct goes beyond the provision of information and acts as an "agent provocateur" or is otherwise a material witness to the crime.  Both the agent provocateur and the material witness play an active role in criminal investigations and proceedings that goes beyond "tipping" the police.  Once a police informer goes into the "field" and acts as a police agent, the informer privilege is no longer applicable to prevent disclosure of his or her identity in respect of the events in which he or she acted as an agent: R. v. Broyles, [1991] 3 S.C.R. 595, at pp. 607-9; R. v. Davies (1982), 1 C.C.C. (3d) 299 (Ont. C.A.), at p. 303; R. v. Babes (2000), 146 C.C.C. (3d) 465 (Ont. C.A.).  This does not mean, of course, that the informer loses protection in other cases where he or she has not stepped out of the protected role.

[34]                          This Court in Leipert held that the rule of non-disclosure binds the state unless the accused can establish "a basis on the evidence for concluding that disclosure of the informer's identity is necessary to demonstrate the innocence of the accused. . . . [M]ere speculation that the information might assist the defence is insufficient" (per McLachlin J, at para. 21 (emphasis added)).  This is the "innocence at stake" exception to the general public interest obligation of the state to protect the confidentiality of informer identity.  The importance of informer privilege should not be allowed to trump "the right of an individual accused to establish his or her innocence by raising a reasonable as to guilt [which] has always remained paramount" (Scott, at pp. 995-96).

[35]                          The courts will enforce the privilege where it is applicable whether it is claimed or not (Bisaillon, at pp. 84 and 88; Basi, at para. 38), and, as stated, without the balancing of competing interests that applies to some other forms of privilege such as journalistic privilege: R. v. National Post, 2010 SCC 16, [2010] 1 S.C.R. 477, or public interest privilege generally, Carey v. Ontario, [1986] 2 S.C.R. 637, unless the protection is waived by the informer and the state: Basi, at para. 40; Named Person, at paras. 22-23; Leipert, at paras. 12-15; and Bisaillon, at para. 93.