Redress Risk Management (post until May 31/19)
Criminal

The use of amicus curiae in cases involving informants

The use of informants makes it impossible for defence counsel to get all the facts in a case, but the use of amicus curiae could go a long way to alleviate any concern they have about information within the Crown's brief, says Toronto criminal lawyer Lindsay Daviau.

There's an inherent mistrust of the material that's behind the protective veil around informants and whether the evidentiary material they offer should be privileged — and not made public, says Daviau, who practises with Rosen & Company Barristers.

"That's the first question, is it actual privileged material," she tells AdvocateDaily.com. "I don't think we should take it at face value." 

Next concerns the veracity of the informer, she says.

Daviau says in certain rare cases, such as national security, an amicus curiae — a friend of the court — is appointed and studies the information on behalf of the defence counsel involved in the matter.

"They can have a look at the material on your behalf, and hopefully explain the situation (to the court) from your perspective, but it's not a two-way street," she says. "They get the information and they don't give anything back to you."

The judicial system, on the whole, can better serve defence counsel with more frequent use of an amicus when informer privilege is invoked, Daviau argues. 

"It's a one-sided flow of information but it's better than nothing," she says. "There's a framework for that and it offers more protections if you have somebody who has some understanding of the defence case."

The amicus would gather information from the defence counsel and then enter court to argue a position, she says. The objective is to reduce any concern about the amount of information that the defence lawyer doesn't have access to, Daviau says.

"I think people have to be more willing to use it," she says. "I think it should be the norm."

The use of informants is a foundational basis of common law and continues to be part of Canadian law enforcement. However imperfect it may be, it's not something that will be going away, Daviau says.

The Supreme Court of Canada (SCC) says informer privilege "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."

Often judges review the information and offer broad strokes of the redacted material, if anything at all, and they determine whether the material offered by a privileged informer is pertinent to the case at hand. 

"Will defence counsel ever get the entire picture? No," Daviau says. "We are not going to get that information. I don't perceive any situation where the Crown would say, 'Okay, here it is.'

"In fact, they can't," she says. "The privilege doesn't belong to them."

Defence counsel, at best, will get 99 sections of the 100-piece jigsaw puzzle, always leaving a lingering "what if" over a case, Daviau says. "As the accused, you're not entitled to everything. Does it bother me? Yes, what if something is in there that no one saw. It wouldn't be the first time someone saw something differently."

And the threshold of innocence at stake is very high, she says. More than likely, if defence lawyers were able to satisfy the requirements, the Crown would probably stay the charge, she says.

“It's extraordinarily difficult to raise," Daviau says.

"I had a case where there was some suggestion that someone else had confessed to the wrongdoing that my client was being prosecuted for," she says.

"My client's wife was murdered and he was the prime suspect but there was some suggestion that somebody else had made a statement to someone to the effect that, 'this had happened and I had done X, Y and Z.' It sounded like our crime scene," Daviau says.

"It was something that piqued our interest and it turned out that there was an informant privilege and we never got access to the information because we weren't able to establish innocence at stake," she says. "Without establishing that high threshold, we never get access to the information.

"That's one example where defence lawyers will always have the feeling of, 'What if we got access?' Maybe what didn't seem relevant to them may be to us. With the information we had, maybe it was relevant," Daviau says. 

She says once the claim of informer privilege is made, it closes the door and defence can't access all of the material. Nor can the Crown waive the privilege.

"I was involved in a case in the Supreme Court as an intervener where the Crown wanted to waive the privilege; they had a witness who they argued wasn't an informant," Daviau says.

The Crown wanted to use the information in trial, but complicating the prosecutor's position was that one police service promised the informant privileged status, while a second service did not. The SCC set aside a lower court's decision in a 5-2 ruling and ordered a new hearing.

"The court said you err on the side of the privilege," Daviau says.

"The witness argued he would only give police information if his identity was protected," she explains. "Even the Crown can't waive it; it's protected, it belongs to the witness. You can imagine why it's so protected, but at times it can tie your hands."

Daviau says she was counsel in another case where the defence wanted information that was provided by an informant and offered undertakings to be allowed into an in-camera hearing to determine whether a witness should be considered an informant. 

"That raised all sorts of issues, like inadvertent disclosure," she says. "You have the information and I would be terrified of slipping information that I wasn't allowed to, and I think it puts a lawyer in a difficult position with their client."

The SCC ruled defence counsel could not offer an undertaking and "can't be allowed into the circle of privilege."

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