Informer Privilege: An Impenetrable Fortress for Police?

Typically a person who is accused of a crime is entitled to know the names of everyone who provides evidence against them in a criminal proceedings and they are usually entitled to confront that person in court with a view to discrediting them as a witness. One major exception to this is when a person known in law as a “confidential informant” provides information to the police about a person that is then used to arrest and or search that person. For instance, police often rely on information from confidential informants to get search warrants and wiretap authorizations to help them gather evidence against a certain person or organization.

An accused person is not entitled to know who the informants are because they are protected by what is called “informant privilege”. Informant privilege has been described by the Supreme Court of Canada as “an ancient and hallowed protection which plays a vital role in law enforcement.   It is premised on the duty of all citizens to aid in enforcing the law.  The discharge of this duty carries with it the risk of retribution from those involved in crime.  The rule of informer privilege was developed to protect citizens who assist in law enforcement and to encourage others to do the same.”
The rule goes back to at least 1794 and possibly originates from the English case of R. v. Hardy (1794), 24 St. Tr. 199. Obviously this rule has been around for a long time.
The first question is: who is a confidential informant? An informant is basically anyone who provides information to the police. However not all informants are entitled to the privilege that their identity not be disclosed. As the Supreme Court of Canada has said “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.” What this means is that the informant will only have his or her identity protected if the information provided to the police is provided in exchange for the police’s guarantee of confidentiality. If this criteria is met, then not only will the identity of the informant be kept confidential, also any information that would tend to whittle down the group of people the informant could be will also be kept confidential. What this means is that any information that would help an accused person figure out who the informant is by a process of elimination will also be kept secret. For example, there may only be a limited amount of people who would know the accused had said something about a plan to import narcotics during a certain time of the year. Obviously if the Crown and police were to reveal that the informant was someone who heard this information first hand, the accused would know that the informant could only be one of a few people. To keep the informant safe, the law prohibits the disclosure of not only the identity but also the information that could help the accused identity the informant by inference.
As can be seen, informant privilege does not protect the identity of an informant who provides information without having given it in exchange for the guarantee of confidentiality. Other people that the privilege will not extend to are material witnesses and what are referred to as agent provocateurs (ie. police agents). The difference between an agent and an informer is that an agent is directed to “go out into the field” by the police to try and interact with the suspect of a crime with the goal of obtaining evidence for the police against that person. For example, if the police were to tell one of their “informers” to make a phone call to the suspect and try to arrange a drug deal, that “informer” would then qualify in law as an agent and would no longer have their identity protected by informant privilege. Similarly, if the “informant” was the only material witness to the transaction alleged to be the crime, then privilege does not attach to them and the defence is entitled to know their identity.

The rule of informant privilege is subject to only one exception. The only real exception is when the accused’s “innocence is at stake”. This refers to a situation in which the accused is able to demonstrate that the only way that they can raise a reasonable doubt about their guilt is if the identity of the informant is revealed. This obviously could only arise in very rare situations. The innocence at stake test is not well defined in the case law because a bona fide claim that an accused can only raise a doubt by getting to know who the informant is so rarely arises. The discussion above about material witnesses is the best example of this exception being applied. If the “informant” is the only material witness to a drug deal then the only way the accused could ever raise a reasonable doubt about their guilt would be if they could cross examine the informant. This would be a situation in which the innocence at stake test would work to lift the mask off the informant so that the accused could challenge their evidence in open court during trial. If however, the “informer” was not the only material witness and it appeared that the accused had a chance of raising a reasonable doubt without needing to know the identity of the informant then the innocence at stake exception would not apply and the accused would not get to find out the identity of the “informant”. On example of this is an old American case in which a police officer hid in the trunk of the informant’s car while the informant picked up the accused and drove to a location to do the drug deal. While the police officer was technically a witness because they were there and could potentially hear a few things that were said between the accused and the informer, the informer was the best witness and the only witness the accused could challenge to help raise a reasonable doubt about identity and other issues such as entrapment. As such the American court ordered that the identity of the informer be revealed.

Informant privilege can be the vessel by which the police can hide their deception and impropriety. In getting a search warrant, the police can potentially provide false information to the judge about what an informant said to them to help them get their warrant. If it is not true and the informant never said that or the informant provided much more information that actually suggested that no crime was taking place at a specific location and the police fail to tell the judge that when they are applying for their warrant, the defence will not be able to obtain the disclosure necessary to uncover these improprieties. In this way, informant privilege can be quite dangerous to the effectiveness of prior authorization process because the police can operate without any oversight from the courts and can simply hide behind claims of informant privilege to ensure their false stories and half-truths regarding what an informant actually said will never be uncovered. Photo by Julian Carvajal