Anonymity at Risk? The Scope of Informer Privilege in R v Durham Regional Crime Stoppers Inc

In R v Durham Regional Crime Stoppers Inc, 2017 SCC 45 [Crime Stoppers] the Supreme Court of Canada (“SCC”) recognized the essential function that confidential informers play by assisting police in criminal investigations and within the justice system as a whole, as well as the necessity of protecting the informers’ identity from retaliation. Yet despite these acknowledgments, the Court limited the scope of informer privilege, potentially hindering Crime Stoppers’ system, which relies on anonymous tips.

Informer Privilege

Informer privilege is a common law rule that protects the identity of an informer in court and acts as a “complete and total bar” on any disclosure of all information that might reveal the informant’s identity (Crime Stoppers, para 10). The courts, the Crown, and the police are all bound by this rule, and have a duty to protect an informer’s identity. Informers can be an invaluable aid to the police in the prevention of crimes or the apprehension of criminals. This is essential to the functioning of the Canadian justice system, as noted by the SCC in Bisaillon v Keable, [1983] 2 SCR 60 at 97:

“The public interest which requires secrecy regarding police informers’ identity is the maintenance of an efficient police force and an effective implementation of the criminal law.”

Because the preservation of informer safety and cooperation is so vital to the administration of justice, informer privilege is nearly absolute. Courts are “not entitled to balance the benefit of the privilege against countervailing considerations” and must recognize that the public interest in protecting informer identity outweighs all other policy concerns (Crime Stoppers, para 15). Informer privilege is not determined on a case-by-case basis, but is a class privilege and only subject to exception when the accused can show that their innocence is at stake (para 14).

Informers can be vulnerable to reprisal from the criminals they inform on, and so the protection of their identity is crucial, both for the individual informer’s safety and so as not to dissuade others from assisting the police out of fear. Therefore, this privilege acts in the public’s interest to safeguard those who aid the police and encourage others to do the same.

Services such as Crime Stoppers—a civilian, non-profit, and charitable organization—that allow the public to assist the police anonymously, are a particularly useful tool for the police to gather information to which they might not otherwise have access because many are more willing to provide information with the knowledge that their identity is hidden and they are safe from reprisals.

Facts

One of the appellants, Keenan Corner, made a statement to the police on February 19, 2014 concerning the fatal shooting of Shabir Niazi, which occurred that same day. Corner later became a suspect in the murder investigation and placed under police surveillance. A week after the shooting, Durham Regional Crime Stoppers received an anonymous tip stating that on the day of the shooting the caller observed four men near the crime scene. It is Crime Stoppers’ policy not to record phone calls or attempt to trace tippers. The information from this call was passed onto the police investigating Niazi’s murder. A few days after the call to Crime Stoppers, the police charged Corner with second degree murder.

The Crown filed a pre-trial application to introduce the anonymous tip into evidence on the grounds that Corner made the call to Crime Stoppers in order to divert the police’s attention away from himself. The Crown intended to use this as evidence against Corner’s credibility, as he was claiming the shooting was committed in self-defence. Corner also denied making the call and he, along with Crime Stoppers, submitted that the call was covered by informer privilege.

Application Judge’s Decision

Because of the private nature of the matter, Justice McKelvey of the Ontario Superior Court of Justice heard the application to introduce the Crime Stoppers’ call into evidence in camera, and found that because Corner denied making the call he could not claim informer privilege. Justice McKelvey, however, allowed Crime Stoppers to advance a claim of privilege as a sort of amicus curiae. Despite Crime Stoppers’ submissions, the application judge found that Corner had made the call in order to deflect police attention, and so informer privilege did not apply.

SCC Limits the Scope of Informer Privilege

Crime Stoppers appealed Justice McKelvey’s decision to the SCC, submitting that individuals who call their system are confidential informers and that informer privilege “attaches automatically: literally, as soon as the phone rings” (para 16). The Court, however, rejected their submission, and in a unanimous decision written by Justice Moldaver, dismissed the appeal, holding that:

“Informer privilege does not exist where a person has contacted Crime Stoppers with the intention of furthering criminal activity or interfering with the administration of justice … shielding this person’s identity behind the near absolute protection of informer privilege would compromise, if not negate, the privilege’s objectives.” (Crime Stoppers, para 9)

Comparing informer privilege to solicitor-client privilege (which protects communication between a lawyer and a client but does not exist when the communications are criminal or could assist in the commission of a crime) the SCC held that the scope of the privilege does not extend to communications made in furtherance of a crime (Crime Stoppers, paras 24-26). Justice Moldaver distinguished such a situation from the innocence at stake exception to informer privilege, insisting that communication meant to support criminal activity or interfere with the administration of justice is completely excluded from the scope of the privilege (para 16). Because the privilege exists in the public interest to further the administration of justice in the investigation and apprehension of criminals, the SCC maintained that extending the scope of the privilege to communications made in the furtherance of crime would act counter to the objectives of the privilege.

Justice Moldaver further insists that people who act in order to subvert the law are not actually confidential informers and should not benefit from the legal protection of this privilege (para 23). Therefore, according to the decision, the privilege does not exist for such communications, even when the person has been promised anonymity or confidentiality by law enforcement (para 17).

Corner and Crime Stoppers also submitted that the privilege must automatically apply to anonymous tips otherwise it could have a “chilling effect” on persons who could provide the police with information on crimes. Crime Stoppers asserted that without automatic class privilege, callers who inadvertently provide misinformation or those who deliberately alter details for their own protection could run the risk of police investigation or sanction. Moreover, the knowledge that their communications are not protected and the fear of possible police attention would dissuade people from using services such as Crime Stoppers, which could in turn keep valuable information away from the police (para 27). The SCC, however, rejected Crime Stoppers’ concerns, noting that the privilege would always exist “except in those cases where it can be shown that the person called with the intention of furthering criminal activity or interfering with the administration of justice” (para 28). There is a high threshold for showing such intention, requiring a “heightened mental element” and “a high degree of moral blameworthiness” and, Justice Moldaver insisted, bona fide callers to Crime Stoppers should have no cause for fear (para 28).

To show that a communication does not fall under the scope of the informer privilege, the onus is on the Crown to prove that on a balance of probabilities the person made the tip with the intention of furthering criminal activity or hindering the administration of justice (para 30). In order to determine whether the privilege exists, the court must proceed on the assumption that it does, and where the Crown challenges the validity of the claim, the court must decide at an in camera hear whether the privilege exists (para 35).

Applying this test to Corner’s alleged call to Crime Stoppers, the Court held that the application judge reasonably found on a balance of probabilities that Corner made the tip to divert police attention away from his criminal act. The Court also found that Justice McKelvey acted appropriately by hearing the matter in camera, and therefore upheld his decision that informer privilege does not apply to Corner’s tip (para 33).

Will the SCC’s Holding Withstand the Test of Public Perception?

It seems only logical that criminals who make false tips to Crime Stoppers in order to hide their crimes should not benefit from a legal protection designed to aid in the apprehension of criminals. It would indeed be counterintuitive and damage public perception of the criminal justice system to extend informer privilege to someone who abuses a system set up to help police in the administration of justice. The SCC, however, does not give enough weight to Crime Stoppers’ concerns over the dissuasive impact that this decision could have on citizens providing information. Granted, bona fide users may not need to fear legal reprisal, but even the innocent want to avoid police attention, which is likely why many use anonymous methods like Crime Stoppers instead of going directly to the police. Although the Court may insist that the bar is high for showing that informer privilege does not exist, the public opinion resulting from this decision could be that any tip is open to legal scrutiny, which could certainly stymie Crime Stoppers’ receipt of useful information.