Confidential informants: Widening the circle of privilege

By Justin Ling September 22, 201722 September 2017

Confidential informants: Widening the circle of privilege

 

Are confidential informants outing themselves to evade prosecution? If so, how should the courts step in to strip them of that privilege? Even if they haven’t, how do you prosecute an informant once they’ve identified themselves as such? 

That was the question before the Court of Queen’s Bench of Alberta earlier this month. 

Here’s the scenario: Police charge a suspect. During the first interview, the suspect reveals information that could later be used at trial. But, during that first interrogation, the suspect also reveals he’s a confidential informant, a fact until then unknown to the arresting officers. 

“The Crown faces a conundrum,” writes Justice J.A. Antonio assigned to the perplexing case. “If it includes the interview, redacted or unredacted, in the disclosure package for the criminal trial, it will effectively be informing defence counsel that Named Person A is a confidential informant.” 

Informer privilege exists for two main reasons. It allows police to recruit people who may have the best insight into criminal activity; it also protects those who aid in police investigations. 

“If [the Crown] does not disclose the interview, it will be in breach of its disclosure obligations, will not be able to explain the breach, and will have no choice but to direct a stay of the criminal proceedings,” Justice Antonio writes. If the Crown can’t figure it out, she adds, disclosure “would essentially give informants a permanent ‘get out of prosecution free’ card.” 

Addressing these concerns, the Crown sought a ruling that a “circle of privilege” always includes an informant’s criminal trial counsel, as there is an increasingly common practice among informants deliberately “self-outing” to escape prosecution. 

The court rejected automatic inclusion in the circle of criminal defence counsel but this does not mean that a court cannot may be authorize it on a case by case basis.  In the case at hand it allowed the Crown to disclose the identifying information to the accused’s defence counsel, subject to certain conditions. These are set out in a 14-point appendix, which effectively sets a gag order on the defence counsel, requires they keep an encrypted file with all relevant notes and case files, and forbids either counsel from disclosing “to any person that they appeared on this application.” 

Amusingly, the accused doesn’t seem terribly interested in protecting his privilege. “He asserts that he was never a confidential informant, or alternatively that he wishes to waive his informant status.” 

However he had in fact agreed to provide information to the police in exchange for a promise of confidentiality, and the court grappled with the case quite seriously, seemingly for good reason. 

“The Crown brought this application in part because it perceives a growing trend of informants ‘self-outing’ with the intention of making disclosure — and prosecution — impossible,” the judge notes. “The Crown properly observes that informant status should not create immunity from prosecution.” 

Indeed, a police officer tasked with handling confidential informants told the court, based on metrics she documents regarding those informants, “she has observed a recent increase in ‘self-outings.’” 

Certainly, it was an option before the court to void the privilege altogether. (The Quebec Court of Appeal, in R. v. Hiscock opted to do just that, where the accused was found to have been actively continuing his narcotics business outside of his role as informant.) 

But the court ultimately decided to keep the accused’s informer status — even though he’s tried to waive it — and allow for disclosure, albeit with the list of conditions.

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