Crime Stoppers: How do you guarantee anonymity?
January 4, 20174 January 2017
Just how far should anonymity stretch to would-be tipsters and whistleblowers in criminal cases? That’s one of the first questions the Supreme Court of Canada will tackle in 2017, as the Crown faces off against a group that it can usually consider an ally: Crime Stoppers.
The case is unusual, but will serve as the goalpost to determine where informer privilege begins and ends for third-party tiplines, like those operated by Crime Stoppers. It comes out of a voir dire decision made at a lower Ontario court, stripping an anonymous phone call made to Crime Stoppers of its automatic privilege.
The call, the Crown contends, was made by the accused — whose identity is protected by a publication ban — and therefore cannot be protected by informer privilege.
Crime Stoppers is coming to the Supreme Court in the hopes that it will “provide a clear statement that informant privilege attaches automatically, as soon as the phone rings,” according to their factum filed on appeal.
If the court sides with Crime Stoppers, it would back up a previous decision, in R. v. Leipert, in which it found that the informer privilege is of such “fundamental importance” that it cannot be weighed against most other interests, and that “once the privilege has been established, neither the police nor the court possesses discretion to abridge it.” That decision protected informers who may have committed a crime, but said nothing of callers who may have committed the crime in question.
The Crown, for its part, says this isn’t about undercutting privilege.
Instead, it’s trying to make the case that the “crime exception” could be applied, and in those “rare circumstances where the Crown can prove that the putative informer was acting for [their] own criminal purpose, the privilege does not apply,” according to its factum on the application for leave.
The Crown even asserts that upholding informer privilege would do a disservice to the privilege itself as it would protect the “actus reus of a criminal offence “ and that, in and of itself, is contrary to the privilege.
The trouble is that the Durham Regional Police, who investigated the murder case at the heart of the legal fight, think the caller is in fact the accused — but they’re not sure.
In the Crime Stoppers factum, they note that the evidence for the caller’s identity is circumstantial at best.
The mere effort to try and unmask the caller, they say, was a violation of the class privilege afforded to their informants. “The Crown had no right to seek to establish the identity of the informant,” argues the organization, represented by Robert Gill, of Clay & Company, and Marie-France Major of Supreme Advocacy.
A trial judge disagreed with both Crime Stoppers’ and the accused’s attempt to keep the call out of the court, and ordered that the anonymous call be played in camera.
The case, scheduled for hearing on January 20, will be an interesting litmus test for the top court’s current attitude with respect to privilege. It may just be the first of further challenges: Journalists are currently facing the impacts of a 2010 case, where the Supreme Court ruled that a journalist’s privilege is a qualified one, subject to an array of constraints.
Just last week, Quebec’s Superior Court ruled that a seizure warrant for a Journal de Montreal reporter’s laptop — which investigators believed contained illegally-obtained information — was perfectly legal. An appeal in that case is forthcoming.
Similarly, VICE Canada is fighting a production order from the RCMP, ordering a report to turn over messaging conversations between himself and a suspected terrorist.
Justin Ling is a regular contributor based in Toronto.