The Supreme Court of Canada clarifies the law of informer privilege in R v Named Person B

On 12 February 2013, the Supreme Court of Canada (SCC) clarified the law of evidence with respect to police informer privilege in R v Named Person B (2013 SCC 9). B offered to provide a police force in Quebec with information about violent crimes and received a promise of confidentiality. This police force then transferred B and his evidence to the Sûreté du Québec (SQ), Quebec’s provincial police force, which did not promise him confidentiality. When the Crown brought an application to determine whether B benefitted from informer privilege with respect to the SQ, the application judge held that he did not.

The SCC sat in a full quorum for this case. Writing for a 7-2 majority, Abella J holds that an implied promise of confidentiality from the SQ to B could be inferred from the facts and that this warrants a new hearing. Cromwell J, writing for the dissenting justices, criticizes the majority’s position as falling outside the limits of appellate review. He argues that the application judge’s findings of fact preclude the possibility of inferring an implied promise of confidentiality in this case. Emerging from this decision is a context-dependent test for determining whether an implied promise of confidentiality has been made: An implied promise of confidentiality exists where someone in the same circumstances of the person claiming informer privilege could reasonably believe that he or she was promised confidentiality.

Facts

After becoming involved in some violent criminal activity, B approached a police force in Quebec with the offer to provide information about his accomplices. This police force promised B confidentiality, but quickly transferred B and his information to the SQ when it determined that the criminal activity was outside its authority.

The SQ gave B an informant code and B continued to provide information for five years. During this time B was arrested for his crimes, but he continued to provide information. At the end of the five-year period, two SQ officers approached B with a “Waiver of Informer Privilege” form, which he refused to sign. The Crown then brought an application to determine B’s status with respect to informer privilege.

B alleged that the SQ expressly promised B confidentiality, but the application judge rejected his evidence and accepted the SQ’s testimony that no promise of confidentiality was made. The application judge found that the SQ did not grant police informer status to B.

Abella J’s Majority Opinion

Abella J starts her analysis by citing R v Barros ([2011] 3 SCR 368), which held that a promise of confidentiality does not need to be express and can be inferred from the circumstances. In Barros, the SCC held that a promise of confidentiality can be inferred from the circumstances if a person in the same circumstances as the potential informer would reasonably believe that his or her identity would be protected.

While the application judge was aware that implicit promises can be inferred, he did not undertake an analysis of whether such a promise could be inferred in the circumstances of this case. Rather, the application judge focused on the claim that the SQ officers had expressly promised B confidentiality; he did not consider whether the police conduct could give rise to an implicit promise of confidentiality. Despite the application judge’s rejection of B’s claim of an express promise, Abella J finds that “the evidence in the record of a nexus between the police forces leaves open the possibility of an implicit promise.”

Abella J holds that there is an implicit promise of confidentiality in this case because there is a nexus between the two police forces and the SQ failed to clarify B’s status. The nexus in this case consists of B’s continued provision of information to the SQ after being promised confidentiality by the first police force. Over five years, B continued to give information to both police forces:

Based on B’s information, the two police forces worked together and dealt with B interchangeably. … This evidence of a close connection between the first police force and the SQ establishes a foundation upon which someone in B’s position may reasonably have seen himself as being part of a joint, ongoing operation between the two police forces.

In addition to this nexus, Abella J finds that the failure of the SQ to clarify B’s status could have “led someone in B’s position to reasonable believe that his identity would be protected.” B asked SQ officers several times whether he had informer privilege, but the SQ officers gave him unclear answers and did not ever tell him that he did not have informer privilege. In addition to this lack of clarification, some SQ officers even assured B that his statements would remain confidential. Abella J remits this case for reconsideration because the sum of this evidence “makes it possible that someone in B’s circumstances could reasonably believe that the confidentiality he was promised by the first police force continued when they transferred him to the SQ.”

Cromwell J’s Dissent

Cromwell J argues that there are several reasons why there was no implied promise of confidentiality. First, B’s claim for informer privilege arose solely from alleged express promises that application judge found to have not been made. Second, the application judge accepted the SQ evidence that they never intended on making B a police informer. Third, B started claiming police informer status years after his initial dealings with the SQ.

In addition, Cromwell J argues that B could not have had an expectation of confidentiality because SQ officers warned him several times that anything he said could be used against him in court.

Cromwell J concludes by arguing that an implied promise was not a live issue in this case and that, even if it was, B would not have reasonably believed that he had police informer status.

Conclusion

Abella J affirms that establishing an implied promise of confidentiality should follow the low bar set out in Barros. The effect of this low threshold could have the desirable effect of motivating police forces to more explicitly define the status of their informants. At the very least, it signals to police forces that they need to be cognizant of an informant’s status with previous police forces. The majority suggests in this case that a prior recognition of informer privilege and continued cooperation between police services can give rise to an implied promise of confidentiality. With the bar this low, police forces have been put on notice that they should clarify the status of their informers.