R v Crevier: Police Informants and the Balancing Act of Challenging Warrants
Police representatives often speak about the difficulties of soliciting information from the public about crimes that have taken place. Fear and a “don’t snitch” culture are common explanations for why this problem exists. In 2009, Kenneth Mark was gunned down after testifying as a witness in an attempted murder trial. His tragic story is a palpable reminder of what can happen to those who assist police in their effort to control crime. Although Mr. Mark was not a confidential informant, it is understandable why someone in his position might choose to remain anonymous.
In light of the risks involved with helping police, confidential informants are invaluable resources in police investigations, providing crucial information that may otherwise have been extremely difficult or impossible for police to obtain. Their anonymity is necessary to ensure both their safety and the integrity of their relationship with the police. In some cases, the informant may be a close acquaintance or family member of the accused.
The information that informants provide to police frequently act as the underlying basis for seeking authorization for a search warrant. For example, in R v Crevier, 2015 ONCA 619 [Crevier] the two informants confirmed the accused’s physical appearance, the fact that she dealt drugs, possessed a loaded handgun and crack cocaine in her apartment, and that she drove a particular vehicle.
A typical strategy of the accused in such cases is to find flaws in a search warrant that can then lead to a striking out of evidence obtained from the search warrant, ultimately destroying any reasonable prospect of a conviction. However, the anonymity of informants adds a layer of complexity when marshaling a proper defense for the accused. The problem lies in the fact that the defense is not privy to the identity of the informant or any information that may possibly lead to identification. In essence, they are given less ammunition with which to challenge the search warrant.
Last week’s Ontario Court of Appeal ruling in Crevier revisited the procedural dilemma of contesting a search warrant based primarily on information from an informant. If the defense seeks to review the grounds for a search warrant, key details that may identify the informant must be redacted before they can see the document. This process, therefore, is a sensitive issue within criminal proceedings because of the uneven access to information between the Crown and defense.
A court’s decision to unseal a search warrant requires a tenuous balancing of three important values of criminal procedure: (1) an accused’s right under s. 7 of the Charter to make full answer and defense; (2) informant privilege; and (3) the interests of law enforcement. R v Garofoli, 1990 2 SCR 1421 [Garofoli] outlines the process by which details from informant-based search warrants should be shared with the defense.
The significance of Crevier is that it deals specifically with step 6 of the Garofoli application. Step 6 is only triggered when, taken on its face, the redacted Information to Obtain document (ITO) is insufficient to support the authorization of a search warrant. In this scenario, step 6 is a final effort to salvage the validity of the warrant. Here, the Crown is requesting that the judge look at the unredacted ITO to decide whether there are sufficient grounds to support the warrant.
While the defense is never privy to the specifics of this unredacted version, the court can only proceed to step 6 if “satisfied that the accused is sufficiently aware of the nature of the excised material to challenge it in argument or by evidence” (Crevier citing Garofoli, para 32). Given an accused’s right to full answer and defense, they are provided with the typical disclosure, a redacted ITO, and a judicial summary of the information beneath the redacted sections of the warrant.
In Crevier, the accused argued that despite having this type of access to the ITO, it was still not sufficient to amount to a fair challenge to the warrant. In the end, the court ruled against the accused and upheld her conviction based on evidence garnered through the search warrant.
At first glance, it seems unfair that a defendant can be convicted despite restrained access to the evidence used against them. It is reasonable that anyone charged with an offence would want to know the exact details of where the police got their information and how it was obtained.
The reality is that the messy process of investigating crime along with taking into account competing values in our justice system challenges the narrow view of primarily focusing on the defendant’s rights. Full answer and defense under s. 7 of the Charter is a principle of fundamental justice but what Crevier highlights is that it is not without limits. The method by which this right is exercised might be altered in cases involving informants but this does not necessarily connote denial or even attenuation of the right (para 101).
Step 6 in a Garofoli application is an exceptional procedure where we clearly see the court struggling to come to a decision that is fair to all parties involved. Our society recognizes the interests of law enforcement to effectively investigate and prevent crime. Intuitively, we also understand why protection of sources of information is important to meet the broader goal of public safety. If the police expect cooperation from the public in solving crime, they must be able to guarantee safety in return, otherwise there would be no incentive to assist them. In many ways, informants are actually doing a public service.
Despite the purported benefits of an informant’s contributions to police, I think the jurisprudence does well in providing an exception to informant privilege through the doctrine of “innocence at stake”. This doctrine requires that the defendant prove that the informant’s identity is necessary to demonstrate their innocence before a judge can reveal the redacted information. This is an important exception because of the very real possibility that an informant may intentionally or unintentionally provide police with misleading information that places an innocent person in jeopardy. In some situations, an informant may have a perverse incentive to implicate the wrong individual and there must be legal safeguards in place to account for this type of situation.
An interesting caveat highlighted in Crevier is that even if some of the tips that an informant shares with police are ultimately found to be untrue, as long as the police had reasonable and probable grounds to believe it was true at the time the search warrant was sought, they will render the warrant valid (para 65). This tells me that the defendant will have a high burden to meet in applying the “innocence at stake” doctrine to challenge the information given by the informant and finally seek the revelation of the informant’s identity. While necessary to maintain a fair balance in step 6 of Garofoli, this doctrine is likely rare in its application.
Overall, the court in Crevier conducts the useful exercise of describing why the intricacies of step 6 in a Garofoli application are unavoidable while also simultaneously attempting to preserve warrants for crime control purposes and respect both defendant rights and informant privilege. The unenviable job of the court in these scenarios can only hope to result in the overarching goal of the effective administration of justice.