|
Evidence - Privilege - Informer
MORE CASES
Part 2
. Canadian Broadcasting Corp. v. Named Person
In Canadian Broadcasting Corp. v. Named Person (SCC, 2024) the Supreme Court of Canada allows an appeal, here where open court doctrine competes with informer privilege:(2) The Interests Protected by the Open Court Principle Yield to Those Protected by Informer Privilege
[37] Informer privilege is of such importance that it has repeatedly been characterized as “absolute” or “near absolute”. This characterization can be explained by the fact that the privilege is non‑discretionary, in the sense that its recognition does not depend on any balancing of interests. This means that once informer status is established, courts are not permitted to weigh the maintenance or scope of the privilege on a case‑by‑case basis in light of the circumstances of the case and competing legitimate interests, such as the level of risk faced by the informer, the pursuit of truth or the preservation of public confidence in the administration of justice (see Vancouver Sun, at paras. 4, 22, 26 and 55; R. v. Leipert, 1997 CanLII 367 (SCC), [1997] 1 S.C.R. 281, at paras. 12 and 14; R. v. Basi, 2009 SCC 52, [2009] 3 S.C.R. 389, at paras. 22 and 37; R. v. National Post, 2010 SCC 16, [2010] 1 S.C.R. 477, at para. 42; Barros, at paras. 1, 30 and 35; Durham, at paras. 1, 11 and 14‑15; Brassington, at para. 36; Canada (Transportation Safety Board) v. Carroll‑Byrne, 2022 SCC 48, at paras. 6 and 8; J. Fournier, “Les privilèges en droit de la preuve: un nécessaire retour aux sources” (2019), 53 R.J.T.U.M. 461, at pp. 489, 491‑92 and 495).
[38] The informer privilege rule applies in civil, administrative and criminal proceedings and admits but one exception, under the criminal law, in cases where this is “necessary to establish innocence in a criminal trial” (Vancouver Sun, at para. 27). The exception is a narrow one that is distinct from the broader right of an accused to make full answer and defence (see Basi, at paras. 22, 37 and 43; Bisaillon v. Keable, 1983 CanLII 26 (SCC), [1983] 2 S.C.R. 60, at pp. 93 and 107; Barros, at paras. 28 and 34; Durham, at para. 14; Brassington, at para. 36; Vancouver Sun, at para. 26; Hubbard and Doherty, at §§ 2:7 and 2:13).
[39] This privilege belongs “both to the Crown and to the informer and neither can waive it without the consent of the other” (Durham, at para. 11, citing Vancouver Sun, at para. 25). As long as its application has not been validly waived, the police, the Crown and the courts have a duty to keep the identity of informers confidential. These three actors are part of the very limited circle of privilege, which the courts have refused to widen to include, for example, defence counsel or the syndic of the Barreau du Québec (see Vancouver Sun, at paras. 21 and 25‑26; Basi, at paras. 44‑45; Barros, at para. 37; Bilodeau v. Directeur des poursuites criminelles et pénales, 2020 QCCA 1267; D. M. Paciocco, P. Paciocco and L. Stuesser, The Law of Evidence (8th ed. 2020), at p. 334).
[40] In the case of the courts, the duty to keep a police informer’s identity confidential means that they do not have “any discretion to disclose . . . information [that might tend to identify the informer] in any proceeding” (Vancouver Sun, at para. 30), even where limiting the scope of the privilege in a particular case would allow “more complete justice” to be done (Bisaillon, at p. 102). The application of the privilege is not subject to any formal requirement, and judges must even ensure respect for it of their own motion (see Bisaillon, at p. 93). Therefore, contrary to the arguments made by the Canadian Broadcasting Corporation et al. (A.F., at paras. 68 and 79), the test developed in Dagenais v. Canadian Broadcasting Corp., 1994 CanLII 39 (SCC), [1994] 3 S.C.R. 835, and R. v. Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442, and reformulated in Sherman is of no assistance, because a judge has no discretion once it is shown that informer privilege applies (Vancouver Sun, at paras. 34‑37).
[41] As the Court of Appeal correctly pointed out, non‑discretionary privileges must [translation] “take precedence over any other consideration, even of public order or public interest, with some limited exceptions” (2022 QCCA 984, at para. 53). Relying on this Court’s decision in National Post (at para. 42) and quoting Beetz J. in Bisaillon (at pp. 97‑98), the Court of Appeal then made the following comments, which are worth reproducing:[translation] It is a privilege that produces its effects “without regard to the particulars of the situation” (thus without regard to the facts of each case) and without it being necessary to establish harm, which is in fact presumed, or an increase in the risk of harm. Indeed, this is how it differs from privilege recognized on a case‑by‑case basis, which calls for such a balancing of the interests of those who claim confidentiality and must show that it is necessary against the interests of those who oppose it or seek access to information. As Beetz J. explained in Bisaillon, comparing Crown privilege and informer privilege:This procedure, designed to implement Crown privilege, is pointless in the case of secrecy regarding a police informer. In this case, the law gives the Minister, and the Court after him, no power of weighing or evaluating various aspects of the public interest which are in conflict, since it has already resolved the conflict itself. It has decided once and for all, subject to the law being changed, that information regarding police informers’ identity will be, because of its content, a class of information which it is in the public interest to keep secret, and that this interest will prevail over the need to ensure the highest possible standard of justice. [Bold added; para. 53.] [42] In short, recognition of the non‑discretionary and thus virtually absolute nature of informer privilege means that the interests protected by the open court principle yield to those protected by informer privilege. This is a difficult societal choice in the sense that it may, in some circumstances, prevail over other very important public interest objectives — for example, promoting the accountability of the judiciary through open justice, favouring adversarial proceedings and ensuring the pursuit of truth — but it is a choice that is essential in guaranteeing the effectiveness of police investigations, the maintenance of public order and the protection of the Canadian public. . Canadian Broadcasting Corp. v. Named Person
In Canadian Broadcasting Corp. v. Named Person (SCC, 2024) the Supreme Court of Canada allows an appeal, here where open court doctrine competes with informer privilege. Here the court usefully summarizes the doctrine of 'informer privilege':B. Informer Privilege
[33] Informer privilege is a “judicially created ‘rule of public policy’ designed to further the ends of law enforcement” (R. W. Hubbard and K. Doherty, The Law of Privilege in Canada (loose‑leaf), at § 2:22). It is a “rule . . . which protects from revelation in public or in court of the identity of those who give information related to criminal matters in confidence” (Vancouver Sun, at para. 16). It applies whenever it is established that the police have received information under a promise of confidentiality, whether implicit or explicit (R. v. Brassington, 2018 SCC 37, [2018] 2 S.C.R. 616, at para. 34; R. v. Named Person B, 2013 SCC 9, [2013] 1 S.C.R. 405, at paras. 1‑4 and 18, quoting R. v. Barros, 2011 SCC 51, [2011] 3 S.C.R. 368, at para. 31).
[34] It will be helpful to briefly explain (1) the rationale for this privilege, (2) how it forms an exception to the open court principle and (3) its broad scope.
(1) Rationale for Informer Privilege
[35] This Court has had many occasions to emphasize the crucial role played by informer privilege in furthering the effectiveness of criminal investigations, the maintenance of public order and the protection of the public. For example, in R. v. Durham Regional Crime Stoppers Inc., 2017 SCC 45, [2017] 2 S.C.R. 157, Moldaver J. eloquently explained the rationale for informer privilege and the reason why it ultimately serves the public interest:As with all privileges, informer privilege is granted in the public interest. Informers pass on useful information to the police which may otherwise be difficult or even impossible to obtain. They thus play a critical role in the investigation of crime and the apprehension of criminals. The police and the criminal justice system rely on informers — and society as a whole benefits from their assistance: see R. v. Leipert, 1997 CanLII 367 (SCC), [1997] 1 S.C.R. 281, at para. 9; R. v. Barros, 2011 SCC 51, [2011] 3 S.C.R. 368, at para. 30. In fulfilling this important role, informers often face the risk of retribution from those involved in criminal activity: Leipert, at para. 9. Accordingly, informer privilege was developed to protect the identity of citizens who provide information to law enforcement: ibid. By protecting those who assist the police in this manner — and encouraging others to do the same — the privilege furthers the interests of justice and the maintenance of public order: see R. v. Hiscock (1992), 1992 CanLII 2959 (QC CA), 72 C.C.C. (3d) 303 (Que. C.A.), at p. 328, leave to appeal refused, [1993] 1 S.C.R. vi. [Emphasis added; para. 12.]
(See also Brassington, at para. 35.) [36] Similarly, in Vancouver Sun, LeBel J., dissenting but not on this point, aptly noted that “the social justification for this privilege [is] found in the need to ensure performance of the policing function and maintenance of law and order” and that this protection is ultimately granted not in the interest of the informer, “but in the interest of more effective law enforcement” (para. 111, citing R. v. Hiscock (1992), 1992 CanLII 2959 (QC CA), 72 C.C.C. (3d) 303 (Que. C.A.), and quoted in Durham, at para. 12).
....
(3) Scope of Informer Privilege
[43] It should be emphasized that informer privilege is extremely broad in its application. It applies “to the identity of every informer: it applies where the informer is not present, where the informer is present, and even where the informer himself or herself is a witness”, and it applies “to both documentary evidence and oral testimony” (Vancouver Sun, at para. 26). It “is not limited simply to the informer’s name”, but rather “extends to any information that might lead to identification” (para. 26 (emphasis added); see also Leipert, at para. 18; Durham, at para. 11; Brassington, at para. 48).
[44] In practical terms, the fact that the privilege covers all information that might lead to the identification of the police informer means that the courts must always be guided by a principle of caution: any information — even the smallest detail — that may lead directly or indirectly to the identification of the informer must be kept confidential (see Leipert, at para. 18; Vancouver Sun, at paras. 26 and 30; Durham, at para. 11; Brassington, at para. 48). Furthermore, the sensitivity of information, in relation to the preservation of the informer’s anonymity, must be assessed in light of the circumstances of each case, having regard to the perspective of the informer’s accomplices and the members of the criminal circle to which the informer belongs. This can easily be explained by “the dual objectives which underlie the informer privilege rule[: n]ot only does the ban on revealing the informer’s identity protect that informer from possible retribution, it also sends a signal to potential informers that their identity, too, will be protected” (Vancouver Sun, at para. 18).
[45] This is of particular importance in the so‑called “usual” scenarios. In the context of a criminal proceeding, the informer is generally not themself an accused but rather a third party who has provided the police with information in order to facilitate their investigation and the gathering of incriminating evidence. The question of informer privilege thus arises indirectly in the proceeding, for example at the stage of Crown disclosure or when a police officer being questioned about what led them to take a certain step invokes this privilege (see Vancouver Sun, at para. 24). In such situations, “only the accused incriminated by the tipster may know what details narrow the pool of potential informants”, which means that “[t]he tiniest and most seemingly innocuous of details could reveal the identity of an informer”, and which also provides further justification for the principle of caution based on the perspective of those in the same criminal circle as the informer (Hubbard and Doherty, at § 2:6; see also R. v. Omar, 2007 ONCA 117, 218 C.C.C. (3d) 242, at paras. 43‑44; R. v. A.B., 2024 ONCA 111, at para. 38 (CanLII)).
[46] Therefore, all details — even those that would seem the most innocuous to a person outside the police informer’s network — must be kept confidential to the extent that their disclosure risks jeopardizing the informer’s safety. In case of doubt, where it is difficult or impossible to identify the information that might compromise the informer’s anonymity, the principle of caution requires that the information provided by the informer be kept confidential (see Leipert, at para. 32; M. Vauclair, T. Desjardins and P. Lachance, Traité général de preuve et de procédure pénales 2023 (30th ed. 2023), at paras. 43.36‑43.37). . R. v. A.B.
In R. v. A.B. (Ont CA, 2024) the Ontario Court of Appeal explains the law of privilege applicable to confidential informants:(i) The law of confidential informant privilege
[34] Once it is properly invoked, confidential informant privilege admits of no discretion. It is a near absolute privilege. Subject to a person successfully raising the innocence at stake exception, this class privilege acts as a complete bar to disclosing not only the identity of a confidential informer, but as a complete bar to disclosing “[a]ny information which might tend to identify an informer”, or, “any information that might lead to identification”. That includes any information that “might implicitly reveal” the informer’s identity: Named Person v. Vancouver Sun, 2007 SCC 43, [2007] 3 S.C.R. 253, at paras. 26, 30 (emphasis added). See also R. v. Leipert, 1997 CanLII 367 (SCC), [1997] 1 S.C.R. 281, at paras. 18, 21; R. v. Durham Regional Crime Stoppers Inc., 2017 SCC 45, [2017] 2 S.C.R. 157, at para. 1; and R. v. Crevier, 2015 ONCA 619, 330 C.C.C. (3d) 305, at para. 49. Accordingly, although confidential informant protected information often meets the low threshold for disclosure, that being anything that is not clearly irrelevant, the fact that it is privileged prevents disclosure from being made: R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326, at pp. 339-340; Leipert, at para. 8; R. v. Biddle, 2018 ONCA 520, 141 O.R. (3d) 401, at para. 66; and R. v. Omar, 2007 ONCA 117, 84 O.R. (3d) 493, at para. 39.
[35] Therefore, when it comes to protecting the identity of informants, the Crown is without discretion. The Crown must not disclose “in any proceeding, at any time”, information that may tend to identify a confidential informant. Accordingly, it is without surprise that confidential informant privilege has been described as “extremely broad and powerful” in scope: Named Person, at para. 30.
[36] There are two reasons why confidential informant privilege is granted a wide berth. Confidential informants are instrumental to the criminal justice system, often providing key information in serious criminal investigations that are otherwise unsolvable. The best informants are often those who operate side-by-side with persons in the criminal subculture. When their identities become known, they are at grave risk of retribution. Their lives may be at stake. That is enough to place people charged with the responsibility of protecting their identities on high alert.
[37] But there is more. When informants are not granted the protection they are promised in return for their information, it also has the inevitable effect of placing the criminal justice system at grave risk. This is because, when a privilege slip occurs, it places an obvious chill on the willingness of persons to become confidential informants: Named Person, at para. 101; Durham Regional Crime Stoppers Inc., at para. 1; and R. v. Barros, 2011 SCC 51, [2011] 3 S.C.R. 368, at para. 30. Therefore, so serious is the privilege to the proper functioning of the administration of justice that it belongs jointly to both the Crown and the informant, and neither can waive it without the consent of the other: R. v. Basi, 2009 SCC 52, [2009] 3 S.C.R. 389, at para. 40
[38] A heavy burden is placed upon the court, police and Crown to protect confidential informant privilege – an obligation that must be actively and sensitively embraced by all. It is essential that all approach the task with a keen understanding that even seemingly innocuous information may reveal an informant’s identity when it is disclosed to an accused: R. v. Shivrattan, 2017 ONCA 23, 346 C.C.C. (3d) 299, at para 68. Those who have to make calls about disclosure do not know what the accused and others already know. Accordingly, the law requires that those disclosure decisions err on the side of caution, assuming that even the disclosure of seemingly bland information can result in a narrowing of the pool. As explained in Omar, at para. 40, “[e]ven the slightest piece of information about the informer gleaned from the police files could serve to eliminate some members of the pool or identify the informer.”
....
(b) The role of the Crown in protecting confidential informant privilege
[71] There is sometimes confusion over the role of Crown counsel. As a quasi minister of justice, the Crown’s primary role is to pursue justice: Boucher v. The Queen, 1954 CanLII 3 (SCC), [1955] S.C.R. 16, at pp. 23-24. This does not mean that the Crown cannot be a vigorous advocate. Quite the contrary. Robust advocacy is part and parcel of the proper pursuit of justice in criminal law. The public expects and deserves nothing less from prosecutors.
[72] At the same time, Crown counsel is no ordinary litigant: R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66, at para. 49. The Crown’s undivided loyalty rests not with a client, but with the administration of justice: David Layton and Michel Proulx, Ethics and Criminal Law, 2nd ed. (Toronto: Irwin Law, 2015), at p. 583, citing McNeil, at para. 49. This loyalty calls on the Crown to rise above the fray and to ensure their communications and conduct are characterized by “[f]airness, moderation, and dignity”: Public Prosecution Service of Canada Deskbook, Part II, ch. 2.2, “Duties and Responsibilities of Crown Counsel”, revised September 12, 2023.
[73] In this case, once the Crown was placed on notice through correspondence with defence counsel about the appellant’s informant status and the [privileged], it was the Crown’s duty to proceed with caution, investigate the situation and engage in meaningful work to ensure that the privilege was not breached. This would have taken thought about how to proceed. However, it was necessary work – work that required setting aside a litigious mindset. Unfortunately, it is apparent through the words and actions of the prosecuting Crown that they did not proceed in this manner. Those words and actions reflect an intentional decision to forge ahead, despite being repeatedly placed on notice of the apparent danger, without giving any consideration to privilege. The result was to place the appellant at risk, and, just as importantly, to place the class privilege at risk.
[74] In my view, there is no alternative remedy capable of redressing the prejudice to the entire class in this case. While the public has a strong interest in a decision on the merits of this case, it has an even stronger interest in the “ancient and hallowed protection” of confidential informant privilege, which plays a vital role in law enforcement: Leipert, at para 9. . R. v. Sandhu
In R. v. Sandhu (Ont CA, 2020) the Court of Appeal sets out the procedure for determining confidential informant privilege:[50] A hearing to determine the applicability of the CI privilege proceeds on the basis that the privilege does, in fact, apply: R. v. Durham Region Crime Stoppers Inc., 2017 SCC 45, [2017] 2 S.C.R. 157, at para. 35; R. v. Basi, 2009 SCC 52, [2009] 3 S.C.R. 389, at para. 44; and Named Person v. Vancouver Sun, 2007 SCC 43, [2007] 3 S.C.R. 253, at para. 47. No one outside the circle of privilege – the police, the Crown and the court – may access information over which the privilege is claimed until the presiding judge has decided that the privilege does not exist or that the single exception – innocence at stake – applies: Durham Regional, at para. 35; Basi, at paras. 43-44.
[51] At this first stage hearing, participation is limited to those within the circle of privilege. The hearing is conducted in camera and ex parte: Basi, at paras. 38, 44 and 53; Named Person, at paras. 41, 46 and 49.
[52] As we will explain, we are satisfied that the trial judge did not err in the procedure he used to conduct the first stage hearing.
[53] First, the procedure followed – an in camera, ex parte hearing, including only those within the circle of privilege – is consistent with the governing authorities. It was also the procedure proposed by trial counsel for Sandhu, the party asserting the inapplicability of the privilege. Provided an evidentiary basis exists upon which the applicability of the privilege may be determined, there is no per se rule that the CI must testify on the hearing.
[54] Second, prior to the hearing, the trial judge permitted defence counsel to file written submissions outlining their position and the result they sought.
[55] Third, also prior to the hearing, the trial judge invited and received questions formulated by defence counsel to be put to the CI handler. During the hearing, which lasted one and one-half days, the trial judge covered all areas contemplated in these questions through what he called a “vigorous cross-examination”. Among other subjects, the questions related to the CI’s identity, relationship with the police, background, motivation and potential role in the commission of the advances charged.
[56] Fourth, the procedure adopted to protect the interests of accused, despite their absence from the hearing, falls within and is best left to the discretion of the trial judge: Basi, at paras. 55, 58. Like other exercises of discretionary authority, the choices made by the trial judge are subject to substantial deference in this court.
[57] In this case, the appellants now say the trial judge erred in failing to appoint amicus or special advocate to represent their interests at the in camera, ex parte hearing and should have provided them with a judicial summary or redacted transcript of the evidence given.
[58] None of the measures now said to have fatally wounded the procedural fairness of the in camera, ex parte hearing were sought at trial. Not amicus. Not a special advocate. Not a judicial summary of the evidence adduced. Not a redacted transcript.
[59] The appellants have no unqualified right to any of these measures. Each is a matter for the trial judge who is in a better position than an appellate court confined to a lifeless transcript to decide how best to mitigate any potential unfairness arising from the in camera and ex parte nature of the proceedings: Basi, at para. 58. [60] It is worth repetition that this is not a case in which the trial judge undertook no evaluative measures. Pre-hearing submissions about the scope of the inquiry and the conclusion that should be reached. Solicitation of questions for the CI handler. Cross-examination based on those questions. Access to a Crown summary described as accurate and complete prior to final argument.
[61] Absent a request for a judicial summary or redacted transcript at trial, combined with our conclusion that the failure to do so does not reflect error, we do not consider it in the interests of justice to compose such a summary or order production of a redacted transcript to facilitate argument of the appeal under s. 683(1)(a) of the Criminal Code.
[62] Once the trial judge determined that CI privilege applied, it fell to the appellant Sandhu to establish that the disclosure sought fell within the innocence at stake exception to the CI privilege rule.
[63] It is uncontroversial that the standard to be met to pierce CI privilege – the innocence at stake test – is onerous. Infringement should only be permitted where core “issues going to the guilt of the accused are involved and there is a risk of a wrongful conviction”: R. v. Brassington, 2018 SCC 37, [2018] 2 S.C.R. 617, at para. 36; R. v. McClure, 2001 SCC 14, [2001] 1 S.C.R. 445, at para. 47.
[64] To engage the innocence at stake exception, an accused must establish that the privileged information is not available from any other source and that there is no other way for them to raise a reasonable doubt about their guilt: Brassington, at para. 37; Named Person, at para. 27. The accused must furnish a solid evidentiary basis; speculation will not do: Named Person, at para. 27; R. v. Barros, 2011 SCC 51, [2011] 3 S.C.R. 368, at para. 34; and R. v. Leipert, 1997 CanLII 367 (SCC), [1997] 1 S.C.R. 281, at para. 21.
[65] The CI privilege rule does not permit an exception for the right to make full answer and defence, nor does it permit any balancing of interests: Named Person, at paras. 28, 49; Leipert, at para. 12; Barros, at para. 35; and Durham Regional, at paras. 14-15. . R v Cook
In R v Cook (Ont CA, 2014) the Court of Appeal took the oppourtunity to make the following salutory comments on the nature of 'informer' privilege, which - if applicable - rendered some evidence inadmissible. The issue relates mostly to criminal law:Analysis
Privilege
[15] In my view, the identity of the author [SS: of an email] is not protected by either informer or public interest privilege. There is therefore no need to determine whether the “innocence at stake” exception is engaged.
[16] I turn first to the issue of informer privilege. It was submitted that the law is not clear on this point. The leading cases analyze informer privilege on the basis that some promise of confidentiality express or implied is necessary. However, in R. v. Barros, 2011 SCC 51 (CanLII), 2011 SCC 51, [2011] 3 S.C.R. 368, Binnie J. seems to have left open the question when he stated, at para. 32: “[i]t might be argued that in a situation of serious potential danger, the informer privilege (or other public interest privilege) might apply even in the absence of the contract-type elements of offer and acceptance.”
[17] In my view, this matter was settled in R. v. Named Person B, 2013 SCC 9 (CanLII), 2013 SCC 9, [2013] 1 S.C.R. 405, at para. 18, when Abella J. confirmed that there must be some conduct on the part of the police from which a promise of confidentiality could be inferred, either expressly or implicitly:The legal question is whether, objectively, an implicit promise of confidentiality can be inferred from the circumstances. In other words, would the police conduct have led a person in the shoes of the potential informer to believe, on reasonable grounds, that his or her identity would be protected? [18] In this case there was no conduct on the part of the police, express or implied, that could have led the author to believe that his or her identity would be protected. The police merely received an unsolicited anonymous email. The test for informer privilege is not satisfied on the facts of this case. (This is unlike a “crime stoppers” communication which is founded on a promise of anonymity.) . R v Basi
In R v Basi (SCC, 2009) the Supreme Court of Canada re-states the accepted law of informer privilege:[35] Before turning to that issue, it will be helpful to consider generally the purpose, scope and operation of the informer privilege and the governing principles set out by Bastarache J. in Named Person v. Vancouver Sun, 2007 SCC 43, [2007] 3 S.C.R. 253.
[36] The privilege arises where a police officer, in the course of an investigation, guarantees protection and confidentiality to a prospective informer in exchange for useful information that would otherwise be difficult or impossible to obtain. In appropriate circumstances, a bargain of this sort has long been accepted as an indispensable tool in the detection, prevention and prosecution of crime.
[37] The informer privilege has been described as “nearly absolute”. As mentioned earlier, it is safeguarded by a protective veil that will be lifted by judicial order only when the innocence of the accused is demonstrably at stake. Moreover, while a court can adopt discretionary measures to protect the identity of the informer, the privilege itself is “a matter beyond the discretion of a trial judge” (Named Person, at para. 19).
[38] Whenever informer privilege is claimed, or the court of its own motion considers that the privilege appears to arise, its existence must be determined by the court in camera at a “first stage” hearing. Even the existence of the claim cannot be publicly disclosed. Ordinarily, only the putative informant and the Crown may appear before the judge. In Named Person, however, the Court considered that an amicus curiae may be necessary or appropriate, particularly where the interests of the informant and the Crown are aligned: Named Person, at para. 48.
[39] In determining whether the privilege exists, the judge must be satisfied, on a balance of probabilities, that the individual concerned is indeed a confidential informant. And if the claim of privilege is established, the judge must give it full effect. As we have seen, Named Person established that trial judges have no discretion to do otherwise.
[40] Finally, the informer privilege belongs jointly to the Crown and to the informant. Neither can waive it without the consent of the other.
|
