Privilege and Search and Seizure

AuthorSusanne Boucher & Kenneth Landa
1R. v. Leipert (1997), 112 C.C.C. (3d) 325 (S.C.C.) [Leipert] at 390.
This chapter will address three areas where issues of legal or evidentiary priv-
ilege affect the litigants’ ability to establish violations of section 8 of the Char-
ter or the Crown’s ability to obtain a search warrant: informer privilege, public
interest privilege, and solicitor–client privilege. Recent jurisprudence has also
found a privilege attaching to journalists’ confidential-source information;
this fourth category of privilege is addressed in chapter 4, “Media Searches.”
1) Purpose of the Privilege
Investigations frequently begin with information provided by a member of
the public who alerts the police to the possibility that someone is engaging
in criminal activity. If the person providing information to the police is con-
sidered an “informer,” that person’s identity will be sheltered by “informer
privilege” and will be concealed from the public, including from the accused
person, to protect the safety of the informer, even if the person’s identity
would have some bearing on the assessment of the credibility of the tip.
The concept of informer privilege is an ancient and hallowed protection
premised on the duty of all citizens to aid in law enforcement.1The common
law recognizes that a citizen’s assistance in providing information to police
chapter 6
Privilege and Search and Seizure
162 Understanding Section 8: Search, Seizure, and the Canadian Constitution
carries the risk of retribution from those involved in criminal activity.2Con-
sequently, the rule of informer privilege was developed to protect those who
provide information, and to encourage all citizens to assist the police by
passing on information about criminal activity.3As the Supreme Court of
Canada noted in Bisaillon v. Keable,4the rule of informer privilege was
afforded not simply for the protection of individuals, but also because it is
necessary to ensure the proper functioning of the criminal justice system:
The rule gives a peace officer the power to promise his informers secrecy
expressly or by implication, with a guarantee sanctioned by the law that
this promise will be kept even in court, and to receive in exchange for this
promise information without which it would be extremely difficult for him
to carry out his duties and ensure that the criminal law is obeyed.
The common law did not give a peace officer this right simply because
it would be useful to him, but because it concluded empirically that the
right was necessary. It is certainly not possible to go so far as to say that,
without this right, a peace officer would be entirely powerless and the
criminal laws would be totally ineffective. However, the inability of the one
to act and ineffectiveness of the other would reach a point where they could
no longer be tolerable.5
Certain kinds of informers face greater jeopardy of retribution than oth-
ers. In R. v. Scott,6Cory J. examined the particularly precarious position of
an informer in a drug investigation, and the corresponding importance of
the rule of informer privilege:
The role of informers in drug-related cases is particularly important and
dangerous. Informers often provide the only means for the police to gain
some knowledge of the workings of drug trafficking operations and net-
works. It has been estimated that in the United States some 95% of all fed-
eral narcotics cases involve the work of informers. . . . The investigation
often will be based upon a relationship of trust between the police officer
and the informer, something that may take a long time to establish. The
safety, indeed the lives not only of the informers but also of the undercov-
er police officers, will depend on that relationship of trust.
Trafficking in narcotics is a lucrative enterprise. The retribution
wreaked on informers and undercover officers who attempt to gather evi-
2Ibid. at 390.
3Ibid.; R. v. Hunter (1987), 34 C.C.C. (3d) 14 (Ont. C.A.).
4Bisaillon v. Keable (1983), 7 C.C.C. (3d) 385 (S.C.C.) [Bisaillon].
5Ibid. at 421.
6R. v. Scott (1990), 61 C.C.C. (3d) 300 (S.C.C.) [Scott].

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