9. Protection of Informant’s Identity

• Author: David M. Paciocco - Lee Stuesser
• Profession: Justice of the Ontario Court of Justice - Professor of Law, Bond University
• Pages: 279-282

Page 279

The common law protects the identity of an informant from disclosure in a criminal or a civil proceeding. This is recognized as a fixed rule. It is subject to only one exception, imposed by the need to demonstrate the innocence of an accused person.

Page 280

An informant’s identity is protected, as a fixed rule of law. Whether to disclose the informant’s identity is not, as with government secrets, a matter of discretion for the judge. There is no balancing of interests to see whether or not the privilege exists in a given case. If you like, the decision has been made: the public interest is best served by protecting the identity of informants. It is accepted that informants play an important role in solving crimes, particularly drug-related offences. It is further accepted that the informants need to conceal their identities both for their own protection and to encourage others to come forward with information.²²¹Given these two rationales, it follows that the privilege is not for the Crown or the informant alone to waive. A valid waiver of the privilege requires the consent of both.²²²The rule protects the informant’s identity; it does not protect the information provided. However, the information should not be divulged where to do so threatens to reveal the informant’s identity. In the case of anonymous tips, where it may be impossible to determine which details of the information provided by an informer will or will not result in that person’s identity being revealed, then none of those details should be disclosed.²²³The rule, although fixed, is not absolute. The one and only exception to the rule protecting the informant’s identity is where the evidence is needed to demonstrate the innocence of an accused person. "All other purported exceptions to the rule are either applications of the innocence at stake exception or else examples of situations in which the privilege does not actually apply."²²⁴It follows that there is no exception in civil cases. Nor will such a claim succeed at a preliminary inquiry, since the presiding judge is not called upon to determine the innocence or guilt of the accused.²²⁵The Supreme Court of Canada in

R. v. Scott outlined in more specific detail where the exception would apply. Each of these situations goes to establish the accused’s innocence or a defence. Where the informant is a material witness, his or her identity must be revealed. Similarly, the informant’s identity must be revealed...