Michael Ford (post until Oct. 31/19)
Criminal

SCC decision brings implications for informer privilege

A recent Supreme Court of Canada (SCC) decision that ruled on informer privilege will have widespread implications for many criminal matters, says Toronto criminal lawyer Melanie Webb.

“This decision means that a tipster cannot hide behind the protective cloak of informer privilege if they are simply trying to thwart the administration of justice,” she tells AdvocateDaily.com.

“While the circumstances of this case were a bit unique, the broader principles still apply to any case involving informer privilege.”

The basic facts of the case, as outlined in the SCC ruling, involve how police received an anonymous Crime Stoppers tip after the fatal shooting of a man. The tipster reported specific observations of four men near the crime scene. Soon after the call, the police charged a man with the murder of this individual. 

During the course of pretrial motions, the Crown brought an application to introduce evidence of the anonymous tip, maintaining that the call was made by the accused to divert attention away from himself during the police investigation, says the SCC decision. The accused denied making the call. In addition, he and Crime Stoppers submitted that the call was covered by informer privilege. The application judge found that informer privilege did not apply, it says.

Webb, who wasn’t involved directly in the case and speaks generally, notes how the lower-court judge found that informer privilege did not apply to the “tip” because the application of informer privilege would undermine the very objectives that underlie the privilege, namely, to further the interests of justice and the maintenance of public order.  

The judge’s ruling was appealed.

Crime Stoppers was granted standing on the original application, and appealed this judgment to the Supreme Court. The accused joined in that appeal, explains Webb, founder and principal of Melanie J. Webb Barrister.

“The SCC considered whether or not informer privilege applied to the anonymous tip made to Crime Stoppers in this particular case, and also considered the procedure to be followed when the Crown challenged a claim of informer privilege on an anonymous Crime Stoppers tip,” she says.

“The court clearly stated that a communication in furtherance of criminality would be excluded from the scope of informer privilege. In plain language, what that means is, if the reason you are making that tip is to interfere with the administration of justice, to thwart the police investigation, or to further criminal activity, then you cannot expect to be permitted to be protected by the cloak of informer privilege. Your identity may be revealed. 

“As the court explains, the reason informer privilege is granted is in ‘the public interest’ to assist the police in the investigation of crime, and the apprehension of criminals. This furthers the interest of justice and maintains public order. If what you are doing is, in effect, exactly opposite to that, to interfere with the police investigation of that criminal activity, do not expect that your identity will necessarily remain protected, because a court may find that informer privilege does not apply to you.”

Webb says the SCC dismissed the policy concern of Crime Stoppers that this would have a chilling effect on citizens who provide information to their tipster line, by reassuring the public that informer privilege will apply “except in those cases where it can be shown that the person called with the intention of furthering criminal activity or interfering with the administration of justice." 

Furthermore, informer privilege is not an absolute rule, as there does exist one exception, that being “innocence at stake," she says. This means that it is still possible that an informant’s identity will be revealed if an accused brings an application and the court finds that exception applies, she adds.

Webb says the SCC decision will have an impact on all cases involving informer privilege.

“Defence lawyers deal with many cases in which information from confidential informants, or anonymous tipsters, has been relied upon in the course of the investigation. Often this information is used in obtaining a search warrant," she says. "Part of the job of a defence lawyer is to review the warrant and Information to Obtain (ITO) which may rely upon such information, and see if there is a basis to challenge the validity of the warrant.” 

Webb says defence counsel may sometimes bring a fairly rare type of application for the court to review whether or not informer privilege rightfully applies to the information summarized in the ITO: in other words, whether the confidential informant or anonymous tipster is actually entitled to that privilege.

"The import of this decision means that we may see more such applications being brought with greater frequency by the defence, and the court may find that the privilege does not apply to some tipsters or informants," she says.

“Dealing with these issues is akin to stepping through a minefield as all parties — police, Crown, defence, and judge — are obligated to respect informer privilege.

"The court in this decision reminds us that informer privilege is not a matter of 'discretion.' We must assume that the privilege applies until a court has determined otherwise."

 

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