Judge issues stern warning about protecting informants

In a stern message to police on their obligations to protect confidential informants, Superior Court Justice Mark Edwards has issued a stay of proceedings in a case dealing with an informant charged with serious drug offences following many years of working with authorities on a drug trafficking case in Ontario.

The ruling dealt with an informant, a parent known to police as a drug user, who worked reliably with them over many years and whose information helped result in a seizure of illicit drugs that was among the largest-ever drug busts in the community identified as Z. The ruling in R. v. A.B. doesn’t identify the name and sex of the accused, the police departments involved, the specific drugs, locations, dates or times in order to protect the informant’s identity. On the substance of the charges, Edwards acquitted A.B. but he went on to rule on an application for a stay of proceedings due to a breach of the informant’s rights under the Charter of Rights and Freedoms.

The informant had been working with police for many years, providing information to help find a source of illicit drugs that had been coming from outside Canada and into ABCPF’s jurisdiction. In the weeks leading up to the informant’s arrest, the RCMP seized a package entering Canada that contained illicit drugs and was destined for the informant’s residence. A police officer from outside of the ABCPF, disguised as a postal worker, eventually delivered a replacement placebo package to the informant. The judge had to determine if the informant was simply the recipient of a package and unaware of the extent and nature of the illicit drugs inside or if the informant was actually to be the final recipient of the package and was fully aware of the contents. Edwards ruled the Crown had failed to prove beyond a reasonable doubt the informant knew exactly what was in the package and entered an acquittal on all charges.

According to Edwards’ Sept. 4 ruling, police arrested the informant, identified as A.B. in the course of the bust. The secretiveness of the informant’s identity became compromised through the exchange of information between police departments, such as videotape interviews. Only two handlers in the police force, identified in the ruling as ABCPF, were to know about her status as an informant, Edwards noted.

The informant’s defence lawyer, Leora Shemesh, calls it a very difficult case that “highlights the importance of police officers and their ongoing obligation to be trained and educated when interacting with informants. “It is extremely important to know the difference between using informants to gain valuable information and using these persons as agents for the state and exploiting vulnerable members of our society to further criminal investigations,” says Shemesh. “It is a delicate balance that must be exercised with precision. When it is not executed perfectly, people suffer long-term consequences, as my client continues to suffer.”

Edwards noted informants play an important role in helping police investigate cases and said the “the position of an informer is precarious and their role fraught with danger.” He said the police in this case, “in the manner in which they dealt with AB prior to his/her arrest, during his/her arrest and subsequent to his/her arrest, reflected a fundamentally flawed understanding of police obligations when dealing with a confidential informer, both at common law and as reflected in the ABCPF’s written policy itself.

“To allow the prosecution to continue would also, in my view, bring the administration of justice into disrepute,” Edwards added in staying the proceedings. “While a granting of a stay of proceedings is an exceptional and rare remedy, there are cases where the misconduct on which the stay of proceedings is granted is such that the court considers the mere fact of going forward will be offensive.”

Shemesh calls the ruling “courageous” and says it’s “a case that should be read as reinforcing our commitment to ensuring that informants are handled carefully, legally and sincerely and it is a case that should call upon all police forces to redevelop strict policies about our courts’ intolerance for those officers who manipulate and abuse the rules.”

In Edwards’ view, it’s vital for the sake of future investigations that informants have the “absolute certainty” police will never disclose their status.

 “The risk that future prosecutions will be hampered because confidential informers do not have confidence that their status as a confidential informer will not be revealed, except by court order, is such that in my view a stay of prosecution in this case must be granted,” he wrote.

According to criminal lawyer Daniel Brown, the ruling reinforces the duty to protect an informant’s identity. “The court goes to great length to protect the informant because of the asset they provide to investigations. Informants are a very important source of information. They provide the police access to worlds they otherwise couldn’t,” he says.

For more, see "Police liable for breaching informer confidentiality."

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