Drug Offences in Canada, 4th edition

Authors Bruce MacFarlane, Robert Frater, and Croft Michaelson

Informer Privilege

The Supreme Court publicly released its decision in R. v. Durham Regional Crime Stoppers, 2017 SCC 45, a decision that had been unpublished for several months while the trial to which it related proceeded. The issue in the case was whether the privilege applied to a tipster whom the trial judge had found was in fact the accused, who had phoned in a tip in an attempt to mislead the police by throwing suspicion on others. The Court held that the privilege did not apply in such circumstances.

Informer privilege was also considered at length by the British Columbia Court of Appeal in Iser v. Canada (Attorney General), 2017 BCCA 393, in the context of civil proceedings. The context was a civil suit brought by someone who had been the victim of a beating while incarcerated. The privilege was invoked by the defendant to resist document production on the basis that it would put at risk informers. Whether the privilege applies “without alteration” in civil proceedings was at issue.

A third significant informer privilege case was the decision of Antonio J. of the Alberta Queen’s Bench in R. v. Named Person A. There, the court had to consider whether an accused’s statement to the police, which included the revelation that he was a police informer, should be disclosed to his counsel. The decision is an important one, not only for its disposition in the circumstances of the case, but for its consideration of the process to be followed in such circumstances.