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Police liable for breaching informer confidentiality

Court finds private law duty of care in precedent-setting case
|Written By Yamri Taddese

In a legal first, a Superior Court judge has ordered the Durham Regional Police Service to pay $345,000 in damages for releasing the identity of a confidential informant who faced her neighbours’ wrath and harassment for speaking to police.

‘We need people to be able to come forward and give information without concern to their safety,’ says Margaret Hoy. Photo: Robin Kuniski

“It’s the first case in which there has been civil liability for police breach of informer privilege,” says Niagara Falls, Ont., lawyer Margaret Hoy, who represented the plaintiff.

Her client “had every bit of confidence in the police and she was let down,” says Hoy.

In Nissen v. Durham Regional Police, Justice Douglas Gray ruled against the police force after finding officer James Liepsig, who denied ever promising confidentiality to the informant, had notes that were “sketchy at best” and his story didn’t add up.

“Even if liability is not absolute, at the very least there must be a duty to take reasonable care to preserve anonymity,” wrote Gray.

“In this case, it is clear that reasonable care was not taken.”

Gray also made a finding of a private law duty of care to the plaintiff in this case that leaves the door open for more lawsuits against police facing accusations of breaching informant privilege.

The ruling is “precedent setting,” says Sean Dewart, a lawyer who had previously acted in a matter regarding Crown counsel disclosing an informant’s identity. The informant in that matter had sought $3 million in damages, but the parties later settled the matter under strict confidentiality.

“My experience, both from the case I was involved in and other cases, is that the police are so fixated on conviction that they quickly forget the obligation they owe to the informant,” says Dewart.

“Informants are frequently in a very vulnerable position.”

The case before Gray involved circumstances more fitting for a Hollywood drama than a quiet residential street in Whitby, Ont., where the saga involving several neighbours began in 2002. At the time, Margaret Stack, a resident of Warden Wilson Avenue, found out her neighbours’ sons, who sometimes looked after her kids, may have stolen guns from other neighbours and taken the weapons to school to threaten students.

The weapons belonged to Cathy and Bryon Whitney, who lived on the same street. When a hysterical Cathy told Stack about the missing guns and who might have taken them, Stack urged her to call police and Cathy agreed to do so when her husband came home. Stack, noticing police hadn’t attended the home, made calls to friends who might know a “trusted” police officer to share the information with. She made it clear she didn’t want any association with the investigation, according to her account as written by Gray.

Eventually, a friend of Stack’s, Ken Rumak, called Liepsig and relayed the story. First, Rumak tried to keep Stack’s name secret but he later told her he had to give it to the officer after Liepsig got “heavy” with him.

While she returned a call from Liepsig, Stack told the court she declined to meet with him.

“She testified that she told Officer Liepsig that he had all the information he needed, and that she could add nothing. He offered to meet in a coffee shop, to which Ms. Stack said no,” wrote Gray, describing Stack’s side of the story.

“Finally, Officer Liepsig said Ms. Stack should come to the police station. Ms. Stack testified that Officer Liepsig said that if she came to the police station and talked to him, he would keep her identity secret. He said he would protect her and she would be totally anonymous.”

Shortly after the conversation at the station, police arrested the neighbours' sons. But soon after, Stack noticed the boys’ parents were acting strangely toward her. The father would “make chicken sounds, clucking and flapping his arms” whenever he saw her.

“[Stack] testified that the [neighbours] started to watch them constantly,” wrote Gray.

“The [neighbours] would come to their living room window or onto the front step of their house or onto their driveway, and glare at them. She said the watching was relentless.”

And Stack testified things came to a head when one day, the father drove his truck onto the sidewalk directly toward her and she escaped unharmed by jumping behind a tree. Stack and her husband, Chad Nissen, told the court they sold their Whitby home and moved away from the area due to the harassment.

Unbeknownst to Stack, police had recorded her interview with Liepsig at the station. The father had a copy of the video after police gave it to his lawyer.

According to Hoy, Stack suffers from severe post-traumatic stress disorder because of the ordeal.

“She had every right to expect the police would keep their word. They did absolutely nothing to keep their word, and that’s very troubling,” says Hoy.

“We need people to be able to come forward and give information without concern to their safety.”

When Stack reached out to police about the harassment from her neighbours, they responded with silence, Gray noted.

“There are certain aggravating features here. First, as noted, the police did nothing whatsoever to preserve Ms. Stack’s anonymity. Second, once they became aware of the harassing behaviour by [the father], they did almost nothing about it,” he wrote.

“Apart from one brief conversation with [the father], in which it is doubtful that the importance of the problem was impressed on [him], the police did nothing. There was no evidence of any follow-up with [the father]. Indeed, somewhat inexplicably, no one even followed up with Mr. Nissen or Ms. Stack to advise them that [the father] had been spoken to.”

If Gray’s decision raises concerns about opening up the floodgates to similar lawsuits, “that’s really a concern about a flood of people who may have been wronged,” says Dewart.

Andra Maxwell-Baker, counsel for Durham Regional Police, wasn’t able to comment last week, saying she didn’t have permission to speak to Law Times by press time.

Note: This story was updated on March 18, 2015.

  • Ottawa Mens Centre
    This case was extraordinary in that most cases involving bad faith by the police are protected at almost every stage by judicial misconduct.

    The police habitually "prosecutor shop" and "judge shop" to get the prosecutor and judge who were hired by the government for their probability of protecting the government from liability.

    While we have a judicial selection process that generally selects the least suitable at ever stage, the odds of decisions like this one will be extremely rare.
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