Reinforcing the protection given to confidential police informers, the Supreme Court of Canada has ruled that the court and Crown have no discretion to disclose any details to the public or media that could lead to their identification.
In a case that set informer privilege - which protects the identities of confidential informers - against the open court principle, an 8-1 Supreme Court majority ruled earlier this month that informer privilege must remain absolute.
“Information which might tend to identify a confidential informant cannot be revealed, except where the innocence of a criminal accused is at stake. Open courts are undoubtedly a vital part of our legal system and of our society, but their openness cannot be allowed to fundamentally compromise the criminal justice system,” wrote Justice Michel Bastarache on behalf of the majority.
In the case of Named Person v. Vancouver Sun, the named person - who was subject to an extradition hearing - told a Supreme Court of British Columbia judge during an in-camera portion of extradition proceedings that he was a confidential police informer who had provided information to the authorities, either in Canada or the unnamed requesting state. The unidentified person told the judge that he had been charged with criminal offences in the requesting state and that his confidential informer status had been breached there.
After seeking assistance from an amicus curiae on several in-camera and public interest issues, the judge requested that counsel for various media groups attend a hearing to make submissions on how the protection of the privilege could be balanced against the interest in publicizing the proceedings. After this hearing, the judge allowed the media counsel to report the details of the hearing to their clients with a limited publication ban on the proceedings, which was met with opposition from counsel of the unnamed person and the attorney general of Canada.
After hearing further submissions, the judge ordered that counsel for various media groups and specific representatives of each group be allowed to review the documents prepared by the amicus curiae, on the condition that they file individual undertakings of confidentiality.
The named person and the federal attorney general appealed this order to the Supreme Court.
While the court noted that the case was “highly exceptional,” as the informer is usually not a party to the proceedings or a witness, it allowed the appeal, noting that the protection given by informer privilege is beyond the discretion of a trial judge, and that the media and its counsel should not have been granted access to any of the privileged material at any time. In all cases where a trial judge is satisfied that privilege exists, “a complete and total bar on any disclosure of the informer’s identity applies,” Bastarache wrote.
“No case-by-case weighing of the justification for the privilege is permitted. All information which might tend to identify the informer is protected by the privilege, and neither the Crown nor the court has any discretion to disclose this information in any proceeding, at any time,” he said.
Cheryl Mitchell, counsel for the attorney general of Canada in the case, tells Law Times that what is important is “how strongly the Supreme Court favoured protecting informer privilege and recognizing how fundamental that is to the administration of justice,” and how it may have a beneficial impact on encouraging would-be informers to come forward.
“To permit trial judges wide discretion in determining whether to protect informer privilege would undermine the purposes of the rule,” wrote Bastarache, noting that the mandatory rule encourages would-be informers to come forward and report on crimes, while remaining confident that their identity will be protected.
He added that any rule that gave trial judges the power to decide on an impromptu basis whether to protect informer privilege would create a disincentive for informers to come forward, dealing a “great blow” to police investigations.
While this ultimately means that trial judges have the authority to hold an entire proceeding involving informer privilege in camera, he did caution that an entirely in-camera proceeding should be seen as a last resort. “A judge ought to make every effort to ensure that as much information as possible is made public, and that disclosure and publication are restricted only for that information which might tend to reveal the informer’s identity,” wrote Bastarache.
However, Justice Louis LeBel, dissenting in part, wrote that “the judge-made rule” of informer privilege can’t deprive a judge of the discretion to consider whether or not the rule is applicable. While the rule’s application may appear to be absolute in classic situations, he adds that “in certain exceptional circumstances, it will be more difficult to establish the scope of the privilege and an adversarial proceeding will be necessary.”
“This will be true, for example, where, as appears to be the case here, the judge must consider the possibility that the privilege is being abused or is being diverted from its purpose,” he says.
Counsel for the named person and for media respondents The Vancouver Sun, The Province, and BCTV could not be reached for comment.