Decision sends message of consequences for breach of Police Informer Privilege

October 14th, 2015 by

By Michelle Stephenson

A recent decision of the Ontario Superior Court has emphasized the importance of police ensuring they protect the identities of their confidential informants (or “CIs”).

In R. v. AB, the informant in question had worked cooperatively with the police as a CI for years, and had aided in one of the community’s largest drug busts ever.

The informant became the subject of a prosecution, however, when a package was intercepted on its way to their home, containing illicit drugs.

The informant was ultimately acquitted on these charges, as there was some connection between this package and their work as a CI, and the prosecution had failed to establish beyond a reasonable doubt that they had been aware of the contents of the package.

However, in addition to the acquittal the Court also granted the unusual remedy of a stay of proceedings.

The significance of a stay is that, even if the accused should not have been acquitted and the prosecution could appeal, the stay would prevent this, ensuring that the proceedings were stopped indefinitely.

The reason for this “exceptional and rare” remedy was the police’s treatment of  the informant’s information throughout the proceedings. Before the informant’s arrest, only two police handlers had known of, and were allowed to know of, the CI’s identity. However, during the course of the arrest and prosecution, the informant’s identity as a CI was compromised.

There is an obligation of Police Informer Privilege requiring CI’s police handlers to protect their identity, which is nearly absolute. The one circumstance justifying a breach of this privilege is where it will prove that a defendant is innocent, known as the “innocence at stake exception”. This was not the case here.

A breach of Police Informer Privilege can have serious consequences for the CI involved and for future investigations, and the Court’s decision in this case reflected that.

It was emphasized that the business of narcotics is dangerous and the “retribution wreaked on informers…is often obscenely cruel”. The need to protect their identity is two-fold. Beyond protecting the safety of the individual CI, this decision signals to potential informants that if they assist the police in investigations, the protection of their identity will be taken seriously. Confidential informants play a major role in the investigation of drug-related crime and to ensure future prosecutions will not be compromised, a relationship of trust is needed.

The Court held that these interests outweighed the interest of ensuring that the prosecution could continue against an individual facing the offences the informant was charged with.

The decision sends a clear message to potential and current informants that, wherever possible, the legal system will enforce their rights. It also sends a message to law enforcement that protecting the confidentiality of informants should be given priority, and where this has failed, a prosecution may not be allowed to continue.

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