Breaching Informant Privilege
- March 24, 2016
- Clayton Rice, K.C.
I have been invited by Edmonton lawyers Aleksandra Simic and Alexandra Seaman to participate as one of their guests in their Advanced Evidence class at The University of Alberta, Faculty of Law, on March 31, 2016. The topic is informant privilege. This post consists of some notes I made and is being published before the class. It is a subject of consternation for lawyers and fascination for the general public because of the secrecy that lies at the heart of the privilege. Yet, the law generally consists of settled principles that date back decades if not centuries in the common law. I will discuss seven of the principles rooted in the cases on the syllabus with a few additions of my own.
The common law divides privilege into two categories: (a) class privilege and (b) case-by-case privilege. Class privilege is further divided into two sub-categories: (a) solicitor-client and (b) informant. The identity and communications of all who fall within these two sub-categories are shielded from disclosure. Class privileged communications carry a prima facie presumption of inadmissibility for policy reasons. Since the topic here is informant privilege I will not talk about the case-by-case category. A good review of the two categories of privilege by an Alberta court may still be found in the ruling by Justice Doreen Sulyma in R v Chan, 2002 ABQB 287, at paras. 47-52.
1. What is an informant?
I have seen various terms used to describe an informant. Members of the public sometimes think of an informant as a police informant because they see them in movies and read about them in crime novels. The police often refer to them as a confidential source or a confidential human source. The law uses the terms informant and informer interchangeably. They all mean the same thing.
Informants are a staple investigative tool frequently relied upon by the police in drug trafficking cases, organized crime investigations, and applications to the courts for wiretap authorizations and search warrants. An informant may be anyone to whom a police officer guarantees protection and confidentiality in exchange for useful information that would otherwise be difficult or impossible to obtain. An informant is often paid money or may receive other consideration in exchange for the information. (See: R v Basi,  3 SCR 389 per Fish J., at para. 36; and, R v Croft, 2013 ABQB 705 per Burrows J., at para. 6)
It is rare that the status of an informant is in issue. Usually, there is no question when informant privilege arises and the only live issue is whether the privilege can be breached. However, in those cases where a preliminary question arises whether a person is an informant, and thus justified in claiming the privilege, the status question should be resolved by the trial judge in an ex parte and in camera hearing. The test for determining status is based on a two part analysis. First, a trial judge must decide if there was an express promise of confidentiality. If so, that ends the inquiry. Second, if there has not been an express promise, a trial judge must consider whether it, “…may be implicit in the circumstances.” (See: R v Barros,  3 SCR 368 per Binnie J., at para. 31; R v Edwards, 2014 ONSC 4174 per Wright J., at paras. 11, 24-7; and, R v Podolski, 2015 BCCA 513 per Willcock J.A., at para. 29)
2. What are the boundaries of the privilege?
Informant privilege belongs to the Crown. It cannot be waived either expressly or by implication without the informant’s consent. It also, therefore, belongs to the informant. The privilege was developed to protect citizens who assist in law enforcement and encourage others to divulge information about crimes to the authorities. It is considered to be of such importance that it cannot be balanced against other interests. Once established, neither the police, a prosecutor nor the court have discretion to abridge it. (See: Basi, at para. 40. See also: R v Leipert,  1 SCR 281 per McLachlin J., at paras. 9, 14-15; and, Chan, at paras. 90-2)
Informant privilege has been described as nearly absolute. In Basi, Justice Morris Fish observed, at para. 37, that the privilege is, “…safeguarded by a protective veil that will be lifted by judicial order only when the innocence of the accused is demonstrably at stake.” While a court can adopt discretionary measures to protect the identity of an informant, the privilege itself is a matter beyond the discretion of a trial judge. (See also: Named Person v Vancouver Sun,  3 SCR 253 per Bastarache J., at para. 19)
The privilege dates back to at least The Trial of Thomas Hardy for Treason (1794), 24 St Tr 199 and is broad in scope – so broad that it is subject only to the one exception I just mentioned that is called the innocence at stake exception. The exception also has a long history in the common law. In Marks v Beyfus (1890), 25 QBD 494 (CA) Lord Esher, M.R. said this, at p. 498: “…[I]f 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 shew the prisoner’s innocence, then one public policy is in conflict with another public policy, and that which says that an innocent man is not to be condemned when his innocence can be proved is the policy that must prevail.” (See: Leipert, at para. 20)
However, protection is not afforded to a source whose conduct goes beyond providing information and who 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 off the police. When an informant “goes into the field” and acts as a police agent, the privilege no longer applies to prevent disclosure of his or her identity in respect of the events in which he or she acted as an agent. (See: Barros, at para. 33)
3. How do the police manage informant information?
In Croft, the evidence of Cpl. Nicholas Marcetta, a source coordinator at the RCMP “K” Division in Edmonton, Alberta, was summarized by Burrows J., at paras. 6-10, which I will condense as follows:
- An informant will have a ‘handler’ – a police officer who is the informant’s contact and who receives the information. There are often two handlers for one informant: a primary handler and a co-handler. The two handlers, the detachment commander and the source coordinator will be the only officers who know the identity of the informant.
- A notebook is maintained in respect of each informant. The notes will include details about any payment made to the informant and discussions about privilege and safety. The notes will also include particulars of the informant’s relationship with the target of the investigation. The notebooks are kept in the detachment commander’s safe and only the handler and the source coordinator have normal access to them.
- The handler prepares Source Debriefing Reports (SDRs) that do not include information which could identify the informant. The handler will include information about the perceived reliability of the informant in the SDRs. The reports are posted in a database where officers with a certain level of security clearance can access them. If the information obtained from an informant cannot be stated in a way that protects the identity of the informant, only the fact that there is an SDR will be posted.
Two aspects of Cpl. Marcetta’s testimony in Croft – information about an informant’s relationship with the target and information about perceived reliability – are relevant to the reasonable grounds precondition for the issuance of search warrants and wiretap authorizations. Although pretrial motions challenging search warrants and wiretap authorizations under s. 8 of the Charter of Rights are outside the course parameters, I will briefly discuss this under the Debot criteria below.
The law is in flux in Alberta regarding disclosure of informant handler’s notes. In Croft, Burrows J., at paras. 33-4, held that discrepancies between an SDR and information in the wiretap affidavit were not sufficient to justify disclosure. In R v Lemke, 2015 ABQB 544 Justice J.B. Veit was also faced with a discrepancy issue and, at paras. 25-7, Crown counsel was ordered to review the handler’s notes and produce the phrase “possession to commit crimes and for protection” if it appeared in them or advise if it was too intertwined with identifying material to be extracted. The defendant sought the information from the handler’s notes because the phrase appeared in an Information to Obtain a search warrant but was not in the SDR. And in R v Hoelscher, 2015 ABQB 651 (a case where Cpl. Marcetta also testified) Justice E.J. Simpson, at paras. 87 and 90, held that the defendant was entitled to disclosure of the SDRs and the handler’s notes after redaction of information that may reveal identity. Justice Simpson emphasized, at para. 91, that the defendant was entitled to disclosure of all relevant documents – not merely the information contained in them. These are all trial court rulings and I am not aware that the question of disclosure of informant handler’s notes has been considered by an appellate court.
4. What is the test for breaching the privilege?
The law embodies a two-stage test that must be followed by a trial judge in determining whether to breach the privilege and reveal information that would identify or may tend to identify an informant. Before the test is considered, a defendant must first establish that the information sought is not available from any other source and he or she is unable to raise a reasonable doubt as to guilt in any other way. If that threshold is met, a court will then consider the following two-stage test:
Stage 1: The defendant must provide an evidentiary basis upon which to conclude that there exists information that could raise a reasonable doubt as to guilt. At this stage, the trial judge will decide whether to review the evidence.
Stage 2: The trial judge must examine the privileged information to determine whether it is likely to raise a reasonable doubt as to guilt. The standard at stage 1 (could raise a reasonable doubt) is lower than at stage 2 (likely to raise a reasonable doubt). If the second stage of the test is met, the trial judge should order production but only the portion that is necessary to raise a reasonable doubt.
The burden lies on the defendant to satisfy the test on a balance of probabilities. The evidence sought should be considered in conjunction with other available evidence in order to determine its importance. The test is a stringent one. If the trial judge concludes that disclosure is necessary, only as much information as is essential to show innocence should be revealed. (See: R v Taylor, 2012 ONSC 6673 per Thorburn J., at paras. 10-7; Leipert, at para. 33; and, Watt’s Manual of Criminal Evidence (2012), at p. 164; See also: R v McClure,  1 SCR 445 per Major J., at paras. 48-51, for the application of the same principles in the context of solicitor-client privilege)
5. What is a Basi hearing?
The Basi hearing is conducted by a trial judge to determine whether informant privilege applies in a particular case. It is an ex parte and in camera hearing. This means that it is conducted without the defendant or his counsel being present (ex parte) and in a courtroom closed to the public (in camera). In Basi, Justice Fish described the hearing this way, at paras. 38, 43-45:
“Whenever informer privilege is claimed, or the court of its own motion considers that the privilege appears to arise, its existence must be determined by the court in camera at a ‘first stage’ hearing. Even the existence of the claim cannot be publicly disclosed. Ordinarily, only the putative informant and the Crown may appear before the judge. In Named Person, however, the Court considered that an amicus curiae may be necessary or appropriate, particularly where the interests of the informant and the Crown are aligned: Named Person, at para. 48.
It is true, of course, that the respondents are in jeopardy of criminal conviction and its consequences. Their right to make full answer and defence guaranteed by s. 7 of the Canadian Charter of Rights and Freedoms is therefore plainly engaged: R. v. Stinchcombe,  3 S.C.R. 326. The Court has made clear, however, that the right to make full answer and defence does not alone trigger an exception to the informer privilege: Leipert, at paras. 23-25. It is only where innocence is at stake that the privilege yields and information tending to reveal the identity of the informant can be disclosed.
It thus remains as true in this case as it was in Named Person that ‘[w]hile the judge is determining whether the privilege applies, all caution must be taken on the assumption that it does apply’ (para. 47). No one outside the circle of privilege may access information over which the privilege has been claimed until a judge has determined that the privilege does not exist or that an exception applies. It follows that the trial judge erred in permitting defence counsel to hear the testimony of an officer tending to reveal the identity of the putative informant at the ‘first stage’ hearing.”
The Basi hearing creates tension in the law because it bangs up against the open court principle. In XY v United States of America, 2013 ONCA 497 the United States requested XY’s extradition from Canada. XY resisted his surrender on the basis that it would violate his right to life, liberty and security of the person under s. 7 of the Charter. XY argued that he risked being killed while in custody in the United States in retaliation for his cooperation with American law enforcement in the investigation of organized crime. The Minister concluded that the United States could adequately protect XY and ordered his unconditional surrender. XY applied to the Ontario Court of Appeal for judicial review. And he brought a motion to seal the court record and to hold the hearing in camera pursuant to the court’s duty to protect informant privilege. The media was granted leave to intervene.
Justice P.S. Rouleau, at para. 4, adopted the procedure in Named Person, at paras. 45-61. The hearing commenced in camera and, after XY was found to be an informant and entitled to claim the privilege, the parties were directed to file a redacted record and facta to be reviewed by the court and released to the media and to the public. Counsel then argued whether this proposed disclosure should be more expansive in order to comply with the open court principle and they largely agreed on the extent to which the hearing should be held in camera.
Justice Rouleau resolved the tension created by the open court principle this way, at para. 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,  1 SCR 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.”
Justice Rouleau, at paras. 14-5, granted the sealing order regarding the court record and also ordered that the public record would be restricted to the redacted record and facta. With respect to the format of the hearing, counsel were required to, “…tailor their submissions so that the hearing will take place to the greatest extent possible in public.” Only the portions of the oral argument that could not be made without disclosing information tending to reveal XY’s identity proceeded in camera.
6. What are the Debot criteria?
As I mentioned above, we are concerned here with the substantive law of evidence and not procedural questions that may arise in pretrial motions under Charter s. 8. However, some overlap is unavoidable. In a pretrial motion, on the question whether there was sufficient reliable information before the judge who issued a search warrant or wiretap authorization to establish reasonable grounds, the reliability of informant information may arise. I referred to this above in the context of Cpl. Marcetta’s evidence in Croft where he testified about (a) the informant’s relationship with the target and (b) perceived reliability. The criteria for testing informant information was described in R v Debot,  2 SCR 1140 where Justice Bertha Wilson wrote, at para. 53:
“First, was the information predicting the commission of a criminal offence compelling? Second, where that information was based on a ‘tip’ originating from a source outside the police, was that source credible? Finally, was the information corroborated by police investigation…? I do not suggest that each of these factors forms a separate test. Rather,…the ‘totality of the circumstances’ must meet the standard of reasonableness. Weaknesses in one area may, to some extent, be compensated by strengths in the other two.”
Although Justice Wilson was in the minority in Debot, the majority opinion of Justice Antonio Lamer did not diverge on this point. The opinion of Justice Wilson thus represents a unanimous court on the three Cs of assessing informant reliability: Is the information compelling, credible and corroborated?
Informants can be problematic for law enforcement. They often bring undesirable baggage with them – a criminal record for crimes of dishonesty, an axe to grind, a motive to settle a score, drug and alcohol addiction, or just a desire to make some quick cash. They can be a management nightmare for both the police and prosecutors irrespective of the support resources that may be available. Informant handlers will therefore make a detailed assessment of an informant’s credibility and reliability and investigators in the field will attempt to independently corroborate the informant information.
7. What is the role of the defence lawyer?
While informant privilege trumps a defendant’s right to disclosure from the state – for the hands of the police, the Crown and the courts are tied by the near absolute privilege – this does not preclude a defence lawyer from investigating the status of an informant by independent means. In Barros, Justice Binnie put it this way, at para. 37:
“The duty to protect and enforce informer privilege rests on the police, the Crown, and the courts, but we have been referred to no prior case where the duty has been extended to the accused and his or her representatives such as Mr. Barros [a private investigator] apart from the exceptional case of inadvertent disclosure to defence counsel: see R. v. Hirschboltz, 2004 SKQB 17,  1 W.W.R. 174, and R.W. Hubbbard, S. Magotiaux and S.M. Duncan, The Law of Privilege in Canada (loose-leaf), at pp. 2-43 and 2-44. There is no authority for the proposition that the substantive rule of confidentiality means that an accused and his representatives are prohibited from attempting to identify an informant for a lawful purpose and by lawful means. From the perspective of an accused, discovery of the identity of a source, and the circumstances under which his or her information was obtained by the police, may legitimately play a role in making out a full answer and defence. There are occasions mentioned in the cases where the ‘source’ turned out to be non-existent, wholly unreliable, or had participated in an entrapment. In McCormack, for example, it was held that the police had deliberately misrepresented three sources, two of whom they had instructed to act as agents and one of whom was a civilian employee of the police force, as confidential informers simply as an ‘investigative technique’ (paras. 7-21).”
The defence may therefore investigate an informant’s status which will usually be done prior to a preliminary inquiry and, if not at that stage, certainly during pretrial preparation. It is axiomatic, as stated by Justice Binnie in Barros, at para. 44, that any investigation must be undertaken for a lawful purpose by lawful means. (See also: Hubbard, Brauti, Fenton. Wiretapping & Other Electronic Surveillance (2016), at p. 4-78.25ff)
These, then, are some of the principles that are contained in the substantive part of the law of evidence regarding informant privilege and which may serve as a basis for further discussion.