Privilege and Search and Seizure

• Author: Susanne Boucher & Kenneth Landa
• Pages: 161-188

161

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.”

A. INFORMER PRIVILEGE

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

c

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].