Ontario Civil


Breach of informer privilege gave rise to private right of action

Plaintiff MS passed story from neighbour W that another neighbour’s son, P had stolen guns from W’s house and had taken them to school indirectly to police via friend R. R yielded to officer’s insistence that he needed MS’s name. Officer contacted MS, who eventually agreed to go to police station to provide statement. As part of Crown disclosure on prosecution of P, video recording of MS’s statement was provided. P’s father E began harassing MS and plaintiff family, including incident in which he drove truck at MS. Plaintiffs moved away from neighbourhood. Plaintiffs brought action against police services board and certain police officers. Action allowed. On its face, privilege gave rise to duty to informer to protect identity from disclosure and from reprisals. While informer privilege had overarching public purpose, breach of it, resulting in harm, gave rise to private right of action. There was sufficient proximity between parties to recognize private law duty to plaintiffs, taking into account any relevant policy considerations. There was no spectre of indeterminate liability, given uniqueness of this case in jurisprudence. Effect that police might be required to be more careful in what they promised potential informers was no reason to not recognize private law duty to informer. Evidence, including testimony of MS and R, as well as MS’s conduct after disclosure of identity and surrounding circumstances, established on balance of probabilities that MS only provided statement because she was given promise of anonymity. Brief and casual discussion of anonymity at end of recording of statement suggested that this was culmination of earlier discussion. Promise of anonymity given before MS made statement was clearly done to persuade her to tell what she knew. Officer did not qualify promise of anonymity in exchange for provision of information in any way. MS was entitled to informer privilege such that police should have taken steps to protect her identity from disclosure in P’s prosecution. MS’s consultation with R about conveying information to police did not constitute waiver of privilege.

Nissen v. Durham Regional Police Services Board (Feb. 26, 2015, Ont. S.C.J., Gray J., File No. 2602/02) 251 A.C.W.S. (3d) 514

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