The Lawyers Weekly - November 11, 2011

CRISTIN SCHMITZ OTTAWA

Defence counsel may use lawful means to try to ferret out the identity of police informants, but attempting to leverage that sensitive information to torpedo the prosecution may amount to obstruction of justice or extortion in some circumstances, cautions the Supreme Court of Canada.

On November 1, nine judges held that last year the Alberta Court of Appeal incorrectly expanded the near-absolute privilege that protects the identity of police informers by making the privilege binding on people accused of crimes and their defence team.

“This proposed extension of
the rule would transform a rule
of non-disclosure binding on
the police, the prosecutorial
authorities and the courts into a
general prohibition of investi-
gation into police informers
binding on the whole world,”
wrote Justice Ian Binnie. “This
goes too far.”
For the court, Justice Binnie
made it clear that so long as the
defence uses “lawful methods”,
it is constitutionally entitled “to
do what it can to identify the
informant and otherwise make
full answer and defence.”
Hersh Wolch of Winnipeg’s
Wolch deWit, who represented
the appellant Ross Barros, said
that if the Supreme Court had
ruled otherwise, the defence
would have been left with one
hand tied behind its back. He
noted there are many legitimate
reasons to seek out an inform-
ant’s identity, including to verify
that the informant exists, to
ascertain whether he or she is a
police agent, and to assess his or
her credibility.

“The decision in Court of Appeal was quite startling and, to many of us, frightening in that it totally eliminated any investigation into the identity of the person purported to be the informant, and now lawyers should feel comfortable pursuing that avenue where it’s important in the case,” Wolch advised.

But he noted as well that the defence’s purpose in seeking out a secret informer’s identity must never be to push the Crown into staying proceedings by threatening to reveal it.

“You can’t put the informant
at risk for the sole purpose of
getting a stay of proceedings,
but if you have a legitimate pur-
pose [to disclose the informer’s
identity], and it does put him at
risk, that’s unfortunate but
that’s the way life is.”
At press time, counsel for the
respondent Alberta Crown

“You can’t put the informant at risk for the sole purpose of getting a stay of
proceedings, but if you have a legitimate purpose [to disclose the informer’s
identity], and it does put him at risk, that’s unfortunate but that’s the way life is.

Hersh Wolch, Wolch de Wit

could not be reached for comment.

However counsel for the
intervenor Director of Public
Prosecutions, Nancy Irving of
the Public Prosecution Service
of Canada (PPSC) in Ottawa,
noted that “it goes without say-
ing that the safety and security
of justice system participants,
including confidential inform-
ers, is a significant concern for
the Crown.”
She added that the PPSC is
“currently assessing what rami-
fications [the decision] may
have for our prosecutions.”
Justice Binnie stipulated that

www.ERAssure.com

Executors need your good counsel – and E&O insurance.

23, OCT ERASSU

With new ERAssure, your executor clients get peace of mind in an unfamiliar role.

The executor, estate trustee, or estate administrator role has always been complex. Changes in our society are adding to the significant risk of liability faced by today’s executors. As a professional, you know the benefit of errors and omissions coverage in an unpredictable and litigious environment. Now you can ensure your executor clients are also protected.