Crime Stoppers’ Tips and Confidential Informants – Proceed with Caution

The subject of Crime Stoppers’ Tips provides a great deal of opportunity for lengthy litigation. Two recent cases from the Supreme Court of Canada have made it clear that there is a special and detailed procedure that must be followed when a party to litigation wishes to challenge the inviolability of informant privilege. 

Informant privilege often arises when there have been tips given to the police pursuant to the popular “Crime Stoppers’ Tips” program. In 2017, the Crown wished to pierce the veil on a Crime Stoppers’ Tip that it believed was phoned in by a murderer in order to divert police attention from himself in the investigation that followed.  The case of R. v. Durham Regional Crime Stoppers Inc., 2017 SCC 45 clearly indicates that informant privilege is a sacrosanct class privilege and subject to a “complete and total bar” on any disclosure of the informant’s identity and on any information that may result in the disclosure of the informant’s identity. The only exception is the “innocence at stake exception” and apart from this, the rule protecting the identity of the informant is absolute.[1] 

The case that ruled informant privilege to apply to an anonymous Crime Stoppers’ Tip was Leipert released by the Supreme Court of Canada in 1997. In Durham Regional Crime Stoppers, the Supreme Court acknowledged that informant privilege does not arise where a person phones in a tip that is intended to further criminal activity or interfere with the criminal justice system. In this case the Supreme Court upheld the application judge’s ruling allowing the disclosure of identity of the tipster in a pre-trial motion brought by the Crown.

The case is interesting because even though the Crown was successful on its motion, this was in spite of a massive error on its part. The Supreme Court found that the Crown had erred in disclosing the Crime Stoppers’ tip sheet to the defence along with all relevant supporting information prior to the pre-trial motion. The court advised that the Crown should have guarded the privilege prior to the hearing since informant privilege is not a matter of discretion. Once again, the Supreme Court of Canada reminded us that the privilege rests with the Crown and the informant. Until there had been a ruling as to whether this really was an informant or until there was permission on the part of the informant, the Crown should not have rushed to disclose information that was not its to disclose. 

The applications judge was correct to focus the pre-trial motion on the issue of whether the privilege applied to this tip. The hearing was held in camera and there was no need for an ex parte application because the Crown had improperly disclosed the tip sheet and the supporting documentation. Had the Crown followed the proper procedure, the hearing would have been ex parte and in camera[2]. The applications judge agreed with the Crown and finally ruled that the tip was not phoned in by a true informant but by the accused himself. The onus rested with the Crown to show on a balance of probabilities that the tip was made by a person who had sufficient motivation to exclude him from the scope of the privilege and hence the ultimate disclosure of the tipster’s identity was allowed. 

More recently, R. v. Brassington, 2018 SCC 37 involved four accused people who were former police officers and who wished to breach confidential informant privilege for the purposes of mounting their defence. They brought an application to pierce the privilege with the case management judge assigned to their matter. They argued that they needed to disclose the identities of certain confidential informants in order to make full answer and defence, and they framed their petition by means of a Charter application.

The Crown moved to challenge this motion under s.37 of the Canada Evidence Act where it objected to the breeching of the privilege on the grounds of public interest privilege. The case management judge dismissed the Crown’s motion. The B.C. Court of Appeal upheld the case management judge’s ruling.

On appeal to the Supreme Court of Canada it became apparent that informant privilege could not be disclosed until the party wishing to pierce the privilege had brought a successful “innocence at stake” application. The Supreme Court of Canada reaffirmed the onerous standard for piercing informant privilege known as the “innocence at stake” test. The privilege can only be breached where core issues going to guilt or innocence are at play and where there is a real risk of a wrongful conviction. In Brassington the four accused had led absolutely no evidence linking the identity of the confidential informants to their defence or in relation to the innocence at stake test. With this in mind then, it becomes essential to have a full appreciation of the “innocence at stake test” and what it involves. 

The following is a short summary of some of the most recent cases that explain the test and the evidentiary thresholds that must be met in order to be successful in an application of this nature:

Innocence at Stake - Successful Applications:

Habits of the Accused: The police obtained information from a confidential informant about the accused’s roommate. They used this information to obtain a search warrant to enter and search a basement apartment where the accused and the roommate lived. The police discovered heroin in the accused’s bedroom and nothing in the roommate’s space. The accused applied for disclosure of the identity of the confidential informant on the grounds that the information that had been given to the police contained the tip that the roommate was a drug dealer and hid his drugs in places such that he would never self-incriminate. Without the evidence of the confidential informant, there was nothing to support the defence other than the accused’s own testimony which the trial judge felt would not likely raise a reasonable doubt. In this case, the trial judge ruled that the necessity aspect of the test was properly met. This case lays out the procedure to follow in an “innocence at stake” application. The inquiry is a two-fold test involving the “Necessity Test” at the threshold stage and the two pronged “Innocence at Stake” test if the necessity hurdle is cleared[3].

Threshold Test (Necessity Test):

This phase of the inquiry involves a two pronged test and the accused bears the burden of showing both aspects of this test:

1.  The accused must show that the information that is sought comes directly from the  confidential informant.
2.  The accused must show that this information is not available from any other source other than the accused.

Once this phase of the application is successfully achieved, then the matter moves to the next              consideration which is the Innocence at Stake Test:

 Innocence at Stake Test:

• Stage 1: If the accused is seeking to pierce the privilege of a confidential informant, he or she must demonstrate an evidentiary basis to conclude that a communication exists (or that the identity is necessary) that could raise a reasonable doubt as to the accused’s guilt. The burden on the accused is “could” raise a reasonable doubt. Onus is balance of probabilities.
• Stage 2: If such an evidentiary basis exists, the trial judge should examine the communication (or identity) to determine whether it is in fact likely to raise a reasonable doubt as to the guilt of the accused.The burden on the accused at this stage of the test is “likely” to raise a reasonable doubt. Onus is balance of probabilities.

Justice Corbett succinctly summarized the core of the innocence at stake doctrine:“The burden of proof never shifts from the Crown to the accused, or from proof beyond a reasonable doubt to proof on a balance of probabilities.If the accused raises a reasonable doubt, then the accused is acquitted. If the accused is acquitted, then the accused leaves the court an “innocent” man. And so, the threshold for piercing informant privilege turns on whether the evidence is critical to the accused raising a reasonable doubt as to his guilt, and not whether the evidence will affirmatively demonstrate his innocence.”[Emphasis added] R. v. Yakubu, [2006] O.J. No. 4864 (Ont. S.C.J. – Corbett J.)

Identification was Key Issue: The accused was successful in piercing the confidential informant privilege because the Information to Obtain a search warrant contained a description of the accused which differed greatly from reality. The Threshold Test was met because the only source of the information was the accused or the informant. The Crown argued that the confidential informant was not the only source of the information – the Crown argued that the accused could testify to it himself. This decision seems to favour that the “only source” referenced in the Threshold Test specifically exempts the accused’s own testimony. R. v. Osborne, 2016 ONSC 3874 (Dunnet J.)

Innocence at Stake - Unsuccessful Applications:

Defence of Entrapment: Defence counsel cross examined the investigating officer and asked a pointed question aimed at uncovering the identity of a confidential police informant. Crown counsel objected but the TJ allowed the questioning. Crown counsel stayed the proceedings pursuant to s.508(1)[4] and a short time later re-instituted the proceedings anew under s.508(2). Defence counsel moved to have the new information stayed on the grounds it was an abuse of process. The trial judge dismissed the abuse application on the grounds that the issue of the identity of the police informer had no relevant context at the time of the cross-examination. In order to protect the identity of the informant, the Crown was right to stop the proceedings. The defence ultimately was entrapment and at the time of the cross-examination of the police officer there had been no evidence of entrapment. In obiter the court noted examples where an informer’s identity may be revealed: 

1. If the informant is a material witness to the crime as per R. v. Davies (1982), 1 C.C.C. (3d) 299 (Ont. C.A.);
2. Where the informant is an agent provocateur and the accused will bring the defence of entrapment.In this case, there will have to be some evidence of the defence before the court prior to a successful questioning as to the identity of the informant.
3. Where the defence challenges a search warrant on the grounds that it is not reasonable.

These are just three examples of where the innocence at stake doctrine may arise. For the defence of entrapment to succeed, there has to be some foundation to pursue the identity of the informant.The evidence gathered against the accused involved the undercover work of a police officer. On the basis of the evidence before the court, the informant played no role in the investigation other than the provision of some information at the beginning of the case – therefore there could be no grounds to pursue the identity of the informant.Had there been evidence of entrapment – the identity of the informant would not be normally be ordered.The next step for the court would be whether disclosure of the identity of the informant would have materially advanced the defence to the point that it was likely to succeed. R. v. Scott, [1990] 3 S.C.R. 979

Application Vague - Fishing Trip: The police outlined information from a confidential informant in a search warrant application. The informant indicated that the confidential informant had seen a firearm in the apartment.  When the police entered the apartment they found a loaded semi-automatic pistol. Two accused were arrested in the apartment. They denied knowledge of the firearm. In their defence, they both testified that four individuals had visited them the day prior to the arrest and one of them could have left the gun there. They testified that they believed the informant was one of the four men and he could have witnessed the firearm being left at their apartment. 

The trial judge found that the first phase “Threshold Test” had been cleared in this case.It was unlikely that the information being sought was available from any other source other than the confidential informant because the four visitors could not be located. However, the trial judge did not believe that the two-stage “Innocence at Stake Test” had been satisfied.The trial judge asked himself: “Does the CI have specific information that could (Stage 1) or would likely (Stage 2) raise a reasonable doubt?”The trial judge ruled that the defence evidence amounted to nothing more than mere speculation.The defence testimony did not convince the trier of fact that the fourth visitor actually was the confidential informant and that he actually saw the other three plant the firearm.The defence evidence, at best, suggests it “may” exist.This does not meet the high standard of Stage 2 of the Innocence at Stake test.R. v. Campbell, [2009] O.J. No. 3407 (Ont. S.C.J. – Belobaba J.)

Application Vague – Fishing Trip:  Police obtained information from a confidential informant that there were drugs and 2 loaded firearms in the accused’s bedroom. The accused lived with his parents. At trial, the accused demanded the disclosure of the confidential informant’s identity on the basis of two theories: (1) that the informant or a third party planted the drugs and firearms in the accused’s bedroom; or (2) that there was no informant, the police were just making it all up, it was the police who planted the drugs and firearm in the accused’s bedroom of his parent’s house. The accused maintained that he had laid an evidentiary foundation for these theories because his parents testified that no one other than the accused had ever been to their house. 

The trial judge ruled that the “Threshold Test” had not been met in this case.The trial judge asked himself the following questions: “What is the information the defence is seeking from the confidential informant and how is the confidential informant the sole source of this information?” If the allegation is that the police planted the drugs and the firearms – how would the confidential informant know this? And if the confidential informant was the party that planted the items – how would disclosure of this person’s identity assist in the search for the truth? Even if the confidential informant was subpoenaed and cross examined, how likely would it be that he or she would confess to having planted the impugned items? Finally, the trial judge was hesitant to pierce the privilege on the grounds that there was no authority to support the proposition that confidential informant privilege can be pierced solely to demonstrate that there actually is an informant.The trial judge stated: “Overall, the defence has not satisfied me that there is information from the CI that is not available from any other source.At most, the defence is hoping to get information which it hopes will support one of its “theories”.R. v. Doucette, [2009] O.J. No. 4998 (Ont. S.C.J. – Conway J.)

Application Vague – Fishing Trip:  As the result of a confidential informant’s tip the police raided a house and found a large marihuana grow operation.  They also found a semi-automatic assault rifle loaded with 18 rounds of ammunition.  The trial judge ruled that the timing of the Innocence at Stake application ought to be delayed until the end of the Crown’s case which would then allow for a full assessment of the Crown’s case.

The accused and his wife testified in their defence. They testified that it was their belief that one of their acquaintances planted the loaded firearm on their premises. They testified the grow operation had become difficult to manage and many shady individuals were known to attend at the residence on a daily basis. They listed several individuals who may have had the motive and opportunity to store a firearm at their residence. It was the speculative nature of this evidence that eventually resulted in the trial judge ruling that the “Threshold Test” had not been met. The trial judge ruled that the accused could call evidence of another suspect by calling the various other people who may have planted the firearm and who could testify to the “porous” nature of the security at the marihuana grow operation. Because this information was available from other sources aside from the confidential informant, the application to pierce the confidential informant privilege was denied. R. v. Julian, 2014 ONCJ 405 (Nadel J.)

Timing and Detail Crucial: A number of firearms were found in a safe in the closet of the house that the accused was living in. The Information to Obtain indicated that a surveillance team saw many people coming and going from the residence the night before the search was effected. The accused presented a written application to know the identity of the confidential informant before the commencement of the Crown’s case. In his materials, the accused did not alert the court to the nature of his defence and he did not give any detail as to what he would ask the informant if the privilege was pierced. Because of a lack of detail and because the application was launched before the Crown had called its case, the court found this to be a speculative application at best and it was denied.  R. v. Nelson, [2014] Q.J. No. 12792 (Court of Québec – District of Montréal)

Timing of Application Crucial and Other Evidence Available:  A confidential informant told police that two people other than the accused had a firearm at a residence. When police stopped a car associated with the residence, they found a loaded firearm in the trunk of the vehicle. The accused was the driver and was charged with possession of the firearm. At trial, the accused made an application to know the identity of the confidential informant arguing that the informant would be able to make out the fact that the firearm belonged to another person. The main issue at trial for the accused was knowledge and possession of the firearm which he maintained he did not know was in the trunk of the vehicle he was driving. 

The application was dismissed on the grounds that it was brought at the beginning of the trial (it was premature) and also on the grounds that the identity of the confidential informant would not assist on the issue of whether or not the accused knew about the firearm in the trunk of the car. The trial judge reviewed the circumstantial case against the accused and noted that there were several other options available to him in order to establish competing inference contrary to guilt.  R. v. Blake, 2016 ONSC 11 (Baltman J.)

Crucial Information Available from Other Sources – The accused and his brother were jointly charged with trafficking in controlled substances and the possession of the proceeds of crime after their home was searched and a large quantity of drugs were found in the accused’s bedroom. At this trial, the accused applied to know the identity of the two confidential informants who had supplied information to the police.The confidential informants had told police that the source of the controlled substances and the trafficker was the accused’s brother. The judge in this case distinguished the facts from those in Yakubu and denied the application on the grounds that there was nothing from the confidential informants to suggest that they had any information as to who put the drugs in the accused’s bedroom. His Honour was of the opinion that since the sole import of the confidential informant information was that the accused’s brother was a drug trafficker, this gave the officers reasonable and probable grounds to believe that controlled substances could be found at the site.  R. v. Xaysy, 2017 ONSC 1952 (Glithero J.)

Finally, while some of the above cases have underlined the fact that premature applications will sound the death knell for any motion to pierce the privilege, the case of R. v. Sandhu et. al., 2016 ONSC 3401 (Mc Combs J.) is useful because it spells out the procedure to be followed in the bringing of these applications and the use by the Crown of s.37(1) of the Canada Evidence Act for the purposes of special in camera hearings to lay the foundational evidence for a judicial determination of the issues.