Thursday, July 25, 2013

Balancing media access and informant privilege

XY v. United States, 2013 ONCA 497 holds:

[9]          Since the privilege applies, the court's role is to "accommodate the open court principle to as great an extent possible without risking a breach of the informer privilege": Vancouver Sun, at para. 55. I do not agree with the media's submission that the privilege only covers information that poses a 'real and substantial' risk, to be proven by evidence, of revealing an informer's identity. The privilege protects any information that might implicitly reveal or would in fact tend to reveal the informer's identity: R. v. Leipert, [1997] 1 S.C.R. 281, at para. 18; Vancouver Sun, at para. 40. I agree with Crown counsel that the analysis of the extent of informer privilege in a given case should not become a trial about what individual pieces of information would or would not actually reveal the informant's identity. The court must apply logic and common sense, and also look to the available evidence, in deciding what information would tend to reveal an informer's identity; the court must consider the entire context, and behave judiciously in the circumstances.

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