Named Person v. Vancouver Sun: Confidential Informant Privilege and the Duty to Accomodate Openess

From Ad IDEM / CMLA

Named Person v. Vancouver Sun^[1]: Confidential Informant Privilege and the Duty to Accommodate Openness</u>

By: Tony S.K. Wong

Blake, Cassels and Graydon LLP

Tel: 416-863-2180; Fax: 416-836-2653

Email: tony.wong@blakes.com

National Media Law Conference, Ottawa, November 2008

Although a judge has no discretion not to apply the informer privilege rule, to ensure that the open court principle is respected, we must ensure that it retains the maximum effect possible by requiring that the informer privilege cover only that information which would tend to reveal an informer’s identity; all other information regarding the proceeding would continue to be information which should be published under the open court principle. ...^[2]

...The guiding rule at this stage should always remain the following: the judge must accommodate the open court principle to as great an extent possible without risking a breach of the informer privilege. This rule is meant to protect informer privilege absolutely while minimally impairing the open court principle.^[3]

INTRODUCTION

The Dagenais/Mentuck^[4] principles govern a court’s exercise of discretion when an application is made to limit public access to court proceedings through a publication ban, sealing order or in-camera order.^[5] These principles ensure that limits on public access will only be imposed where demonstrated by an applicant to be necessary to prevent a serious risk to the proper administration of justice. They ensure that any limits on public access are narrowly tailored to prevent the risk sought to be avoided. They ensure that the benefits of any limits on public access are demonstrated to outweigh the harm the limits have on freedom of expression and freedom of the press. With the Dagenais/Mentuck principles, the vast majority of court proceedings should be fully accessible to the public.

On its face, the Supreme Court of Canada’s recent decision in Named Person v. Vancouver Sun^[6](“Named Person”) appears to be inconsistent with the Dagenais/Mentuck principles. There, Justice Bastarache and seven other members of the court held that when public access is sought to be limited to protect the identity of a confidential informant, i.e. informant privilege, the Dagenais/Mentuck principles have no application. Despite a strong dissent from Justice LeBel^[7] the majority held that the protection of the identity of the confidential informant is to take precedence over the presumption of openness in every case. The majority held that a court has no discretion in a particular case to sacrifice the protection of informant privilege even where there may be a compelling public interest in knowing the informant’s identity. The absolute protection of confidential informant affirmed in Named Person appears difficult to reconcile with the constitutional presumption of openness.

However, despite the absolute protection of confidential informant privilege in Named Person, the majority also builds in significant protections to ensure that court proceedings involving confidential informants remain as open as possible. Far from authorizing a court to ignore the presumption of openness, the majority orders a court to accommodate openness. A court is required -- at the outset of an application to limit openness to protect informant privilege -- to determine whether informant privilege in fact exists. The hearing to make this determination – while occurring in-camera and in the absence of the media – is not to be a mere formality. Rather, it is one where the court can appoint an amicus curiae to assist it in determining whether the privilege exists. Further, even after informant privilege is found to exist, the court must still accommodate openness by ensuring that as much of the hearing and the court records are made available to the public as possible without compromising the informant privilege. In addition, at this stage of the application, a judge has discretion to give notice to “interested parties”, including the media and to invite submissions from them on how openness is to be accommodated.

How future courts interpret their “duty to accommodate openness” will determine how open court proceedings involving confidential informants will be. However, the very recognition of this duty should have a positive impact on protecting the presumption of openness. The duty to accommodate openness recognized in Named Person will focus the court’s inquiry on why information should not be disclosed to the public as opposed to why it should be disclosed. Such a focus should result in greater public access.

THE FACTS

The Named Person decision arose in the context of an extradition hearing. In the midst of the hearing, the subject of the extradition request (“the Subject”) applied for an order that the hearing proceed in-camera. This application was consented to by the Attorney General and allowed by the Extradition judge. While the hearing was proceeding in-camera, the Subject applied to stay his extradition on the grounds that his Charter rights had been violated. To support this application, the Subject advised the court that he is a confidential informant who had supplied information to authorities (either in Canada or in the requesting state). He advised that he had been charged with committing criminal offences in the requesting state and claimed that the requesting state had violated his informant privilege by disclosing his status to a co-conspirator for the purpose of obtaining information implicating the Subject which information was then used to make the extradition request.

In light of the Charter application, the Extradition judge raised the issue of whether the hearing should continue in-camera. The Extradition judge appointed an amicus curiae to assist him in determining this issue and provided this amicus with copies of exhibits and documents that were before the court as well as a transcript of the in-camera proceedings.

Following review of the materials provided, the amicus submitted to the Extradition judge that the issue of whether the hearing should remain in-camera ought to be determined by adversarial argument and that notice of the in-camera proceedings should be given to “those media counsel who had been known to represent local and national media outlets in past judicial proceedings in British Columbia involving publication bans on appropriate undertakings and orders to protect the Named Person’s interests.”^[8]

The Extradition judge adopted the amicus’ submissions and provided notice of the in-camera hearing to certain media counsel recommended by the amicus on the condition that they file undertakings of confidentiality and non-disclosure to their clients of anything learned at the hearing. A number of media counsel attended in response to the notice. The Extradition judge then directed that another hearing be held in-camera to receive submissions on how the privilege should be protected and how it should be balanced against the media’s and the public’s interest in publicizing the proceedings. The Extradition judge also allowed the media counsel to report the details of this hearing to their clients but imposed a limited publication ban on it.

At the outset of the in-camera hearing, the Extradition addressed the issue of what materials should be disclosed to media counsel and their clients to allow them to instruct counsel on the submissions to be made regarding the applicability of the Dagenais/Mentuck test and whether that test required that the Extradition hearing proceed in-camera. The Extradition judge made an order granting the media counsel’s request for the materials provided to the amicus. The Subject and the Attorney General appealed this order. This order was the subject of the appeal heard by the Supreme Court.

SUMMARY OF THE DISPOSITION OF THE APPEAL BY THE SUPREME COURT

The majority of the Supreme Court of Canada allowed the appeal and set aside the Extradition judge’s order granting disclosure of the amicus materials to the media representatives and their counsel. In so doing, it found that the Extradition judge had made three errors:

1. The Extradition judge erred in appointing amicus to assist in the legal determination of the scope of informant privilege. This was an issue for the determination of the Extradition judge alone. The Extradition judge further erred in disclosing detailed facts about the identity of the informant to the amicus.^[9]Such disclosure is inconsistent with informant privilege.

2. The Extradition judge erred in only giving notice of the in-camera hearing to “certain known and respected lawyers for the various media outlets” identified by the amicus. This “unfairly and arbitrarily privileged certain members of the media on the basis of the judge’s or the amicus’ views.” If notice is to be given to the media, it ought to be given in a “public manner available to all interested parties.”^[10]

3. The Extradition judge erred in providing the media with access to the informant privileged material and in allowing the media to participate in the initial determination of whether informant privilege exists. This determination should have occurred in-camera in the absence of the media. The Extradition judge also erred in attempting to “determine if the underlying rationales of the privilege were present in this case or if the risk to the Named Person justified the informer privilege. As an informer, the Named Person was absolutely protected by the privilege. ...”^[11] DISCUSSION AND ANALYSIS

The Absolute Protection of Confidential Informer Privilege

In Named Person, the majority of the Supreme Court of Canada made it clear that once confidential informant privilege is found to exist, the courts are required to protect it without exception. As Justice Bastarache noted:^[12] This general protection is so important that it renders informer privilege a matter beyond the discretion of a trial judge. As McLachlin J. wrote in Leipert at para. 12:

Informer privilege is of such importance that once found, courts are not entitled to balance the benefit enuring from the privilege against countervailing considerations… [emphasis added by J. Bastarache]

To similar effect was the Court’s finding in Bissaillon v. Keable, [1983] 2 S.C.R. 60 at p. 93, that the application of the rule “does not depend on the judge’s discretion, as it is a legal rule of public order by which the judge is bound.”

Thus, a court does not have any discretion with regard to the privilege; a court is under a duty to protect the informer’s identity. Indeed, the duty of a court not to breach the privilege is of the same nature as the duty of the police or the Crown.

It deserves emphasizing here that the rationale for the privilege’s existence is not something that allows for weighing on a case-by-case basis the maintenance or scope of the privilege depending on what risks the informer might face. Informer privilege is a class privilege that always applies when it has been established that a confidential informer is present.

Once it has been established that the privilege exists, the court is bound to apply the rule. It is the non-discretionary nature of the informer privilege rule which explains that the rule is referred to as “absolute”: see R.W. Hubbard, S. Magotiaux and S.M. Duncan, The Law of Privilege in Canada (Loose-leaf), at p. 2-7. The Crown has a similar obligation: the privilege is “owned” by both the Crown and the informer himself, so the Crown has no right to disclose the informer’s identity: Leipert at para. 15.

In addition to being absolutely protected over competing interests, informant privilege is extremely broad in its application. Justice Bastarache stated:

In addition to its absolute non-discretionary nature, the rule is extremely broad in its application. The rule applies to the identity of every informer: it applies when the informer is not present, where the informer is present, and even where the informer himself or herself is a witness. It applies to both documentary evidence and oral testimony: Sopinka, Lederman and Bryan at pp. 882-83. It applies in criminal and civil trials. The duty imposed to keep an informer’s identity confidential applies to the police, to the Crown to attorneys and to judges: Hubbard, Magotiaux and Duncan, at p. 2-2. The rule’s protection is also broad in its coverage. Any information which might tend to identify an informer is protected by the privilege. Thus the protection is not limited simply to the informer’s name, but extends to any information that might lead to identification.^[13][emphasis in original]

The Duty of the Court to Accommodate Openness

While a court is absolutely required to protect informant privilege, this does not mean that the presumption of openness ceases to apply in court proceedings involving confidential informants. The Named Person decision sets out two important protections for the presumption of openness in the context of applications sought to limit openness to protect informant privilege. First, before any such limits can be imposed, the court must first be satisfied that the privilege legitimately exists. Second, the court is under a duty to ensure that it only limits access to that information the disclosure of which would compromise informant privilege. The court must ensure that non-identifying information continue to be available to the public. Both restrictions are reviewed in greater detail below.

The Duty to Determine Whether Informant Privilege Exists

Before imposing any limits on the presumption of openness to protect “informant privilege” a court must first be satisfied that the privilege exists. The absolute protection afforded to the identity of a confidential informant depends, of course, on an initial finding that the person who seeks to have his/her identity protected is in fact a confidential informant.

Having regard to the absolute protection of informant privilege, it is vital that a court being asked to limit openness on this basis carefully scrutinize any claim of privilege before finding that it exists. The determination of whether informant privilege exists is done in-camera and in the absence of the media:

In the course of the determination of whether or not the privilege applies, the proceedings will be carried on in-camera. During this determination, the only parties with standing will be the Attorney General and the person claiming the protection of the privilege, in addition to an amicus with the mandate set out above, in those unusual situations in which the judge finds this to be necessary. No other parties have standing in this part of the proceeding. The reason for this is simple: since the determination of the applicability of the privilege is a simple matter of determining whether the person is indeed a confidential informer — I repeat that no balancing of competing legal interests or rights is at stake — no one else will have any arguments of value to contribute to this determination. Furthermore, allowing third parties standing at this stage would needlessly increase the risk of disclosure of the identity of the confidential informer.^[14]

However, despite excluding the public and the media, Justice Bastarache makes it clear that the determination of whether a claim of informant privilege is valid should not be treated as a mere formality. To the contrary, he expects that any such claim should be subject to serious argument, review and scrutiny. This is clear from his concern about having the determination made in the absence of an adversarial proceeding. He stated:

Of course, we must make allowances for the difficult position that the judge will be in, namely an in-camera proceeding in which both parties – the alleged informer and the Attorney General – will often both be arguing in favour of the same conclusion. ... If such a circumstance should arise, the non-adversarial nature of the proceedings at this stage may cause concern.^[15]

To address the potential absence of an adversarial proceeding, Justice Bastarache permitted the court to appoint an amicus “in some cases” for the limited purpose of assisting in the determination of whether or not the evidence supports the conclusion that the person is a confidential informer. While the amicus will not be entitled to make submissions as to the scope of the privilege and will only be entitled to access that information which is “absolutely essential to determining if the privilege exists”, the mere presence of the disinterested amicus should ensure that informant privilege will not be recognized or granted without review and scrutiny by the court.

The determination of whether a person is a confidential informant is not always simple and straightforward. In Named Person, Justice Bastarache does not define when a person will be a confidential informant^[16]. One issue that Canadian courts have considered is whether an explicit or implicit promise of confidentiality from the authorities is required before a person is to be treated as a confidential informant. The Supreme Court of Canada’s decision in Bissaillon v. Keable,^[17]' as cited in Leipert,^[18] supports that a promise of confidentiality is required to make a finding of informant privilege. In Bisaillon, the Supreme Court stated:

The rule gives a peace officer the power to promise his informers secrecy expressly or by implication, with a guarantee sanctioned by the law that this promise will be kept even in court, and to receive in exchange for this promise information without which it would be extremely difficult for him to carry out his duties and ensure that the criminal law is obeyed.^[19][emphasis added]

See also Canada (Solicitor General) v. Ontario (Royal Commission of Inquiry into Confidentiality of Health Records) where Martland J. states, "The privilege is that of the Crown, which is in receipt of information under an assurance of secrecy".^[20][emphasis added]

The issue of whether an explicit or implicit promise of confidentiality is required to create confidential information privilege was directly considered by the Ontario Superior Court of Justice in R. v. Brown.^[21] In that case, a number of witnesses applied to quash their subpoenas arguing, among other things, that they were confidential informants. In considering their application to quash, Justice Trafford noted that not all people who provide information to the police are confidential informants:

Not everyone who gives information to the police is a confidential informant. It is one thing to be an informant - it is another thing to be a confidential informant. To be a confidential informant an informant must request the privilege, expressly or by necessary implication, and receive an assurances of confidentiality, expressly or by necessary implication, from the officer. Regard must be had for all of the circumstances of the case. A would be confidential informant does not begin with a right of confidentiality but does have a right to silence. One need not give information to the police. But, if the privilege attaches to the relationship, a right of confidentiality in the confidential informant is created and must be recognized by everyone. ... For a contrary analysis see R. v. 4-12 Electronics Corporation (1996), 47 C.R. (4th) 20 (Man. Q.B.) at 26-27 where Hanssen, J. proceeds on the basis that all informants are, by reason of a right of confidentiality, confidential informants and requires any advocate of the contrary to prove the absence of confidentiality on a balance of probabilities.^[22][emphasis added]

Justice Trafford noted that the general promise on the part of the police to keep information received in the course of an investigation confidential is not sufficient to give rise to informant privilege:

One must distinguish the privilege of a confidential informant, and the right of confidentiality attendant to it, from the practice of a police officer treating all information received in the course of duty as confidential information. Such practices are not in all cases to be equated with an assurance of confidentiality necessary to constitute the privilege. Absent such an assurance, all information collected during an investigation that is not clearly irrelevant must be disclosed by the Crown to the defence. See R. v. Stinchcombe (No. 1) 1991, 68 C.C.C. (3d) 1 (S.C.C.), R. v. Egger (1993), 82 C.C.C. (3d) 193 (S.C.C.), R. v. Chaplin (1995), 96 C.C.C. (3d) 225 (S.C.C.) and R. v. La (1997), 116 C.C.C. (3d) 97 (S.C.C.).^[23]

The requirement of an explicit or even implicit promise of confidentiality to create informant privilege would clearly make it more difficult to prove that a person is a confidential informant. However, other judges, including other judges of the Ontario Superior Court have not gone so far as to say that a promise of confidentiality is necessary to find informant privilege. Indeed, some courts have rejected that such a promise is required: See R. v. Thomas ^[24]and see R. v. Eurocopter. ^[25]

Waiver of Privilege

Waiver is another issue that the court may have to consider at the initial stage of determining whether informant privilege exists. If the evidence supports that informant privilege exists, the court should still determine whether that privilege has been waived by the informant and the Crown.^[26]If it has been, then the privilege clearly ceases to apply and no limit on openness ought to be imposed to protect the privilege.

The Duty to Provide Public Access to Non-Identifying Information

Even after a court determines that informant privilege validly exists, its duty to accommodate openness does not end. A court must still provide public access to as much of the court proceedings and court documents as possible without compromising the privilege. Justice Bastarache noted:

A judge ought to make every effort to ensure that as much information as possible is made public, and that disclosure and publication are restricted only for that information which might tend to reveal the informer’s identity.^[27]

Similarly, he describes this duty to accommodate openness in even stronger language stating that:

...the judge must accommodate the open court principle to as great an extent possible without risking a breach of the informer privilege. This rule is meant to protect the informer privilege absolutely while minimally impairing the open court principle.^[28][emphasis added]

How the court can provide access to non-identifying information without compromising informant privilege

While Named Person recognizes a clear duty to accommodate openness by providing the public with access to non-identifying information, it does not specifically set out how a court is to go about doing so. Interestingly, Justice Bastarache appears to compare the approach to be taken by the court to the Dagenais/Mentuck test for limiting openness. He states:

This approach is in line with the one taken to the open court principle in Dagenais and Mentuck. As noted above (at para. 35), the test set out in those cases is a particular attempt to balance open courts with secrecy requirements in situations of judicial discretion. In other words, it is one application of the open court principle to a situation of secrecy. This case presents a different application: where the secrecy arises out of the informer privilege rule and allow the trial judge no discretion, Dagenais/Mentuck does not apply.^[29]

A review of the Named Person decision does in fact reveal a number of parallels between the Dagenais/Mentuck Test and the approach that a court is to take in accommodating openness where informant privilege is found to exist. For example:

Real and Substantial Risk/Serious Risk

In Dagenais/Mentuck, the party seeking to limit openness bears the onus of showing that a limit is necessary in order to prevent a “serious risk” or a “real and substantial risk” to the proper administration of justice. In Named Person, Justice Bastarache uses similar language when he states that:

to ensure that the open court principle is respected, we must ensure that it retains the maximum effect possible by requiring that the informer privilege cover only that information which would in fact tend to reveal an informer’s identity; all other information regarding the proceeding would continue to be information which should be published under the open court principle.”^[30][emphasis added] '

The use of the words “would in fact tend to reveal an informer’s identity” creates a relatively high threshold for limiting public access in order to protect informant privilege. Indeed, it is arguable that this standard is even higher than the standard of “serious risk” or “real and substantial risk”. Justice Bastarache is not, unfortunately, consistent in using the words “would in fact tend to reveal an informer’s identity”. At other parts of his decision, he uses language that appears to set a lower threshold for defining what is “identifying” information and does not explain the change in language. At another point, for example, he states that “[a]ny information which might tend to identify an informer is protected by the privilege. Thus the protection is not limited simply to the informer’s name, but extends to any information that might lead to identification.”^[31] [emphasis in original] At another point, he refers to “any information that might tend to reveal the confidential informer’s identity....”^[32]

While the words “might tend to reveal” or “might tend to identify” do appear to set a lower threshold than the words “would in fact tend to reveal”, the threshold set is still significant. It is not enough that the information “might” reveal the identity of the informant. What is necessary is that it might “tend” to reveal the identity. If the word “tend”, is to have meaning, then something more than the mere risk of identifying the confidential informant is required. This something more must be the real possibility of identification as opposed to a remote or speculative risk of the same. In this regard, clear parallels can be drawn to the test in Dagenais/Mentuck. Under Dagenais/Mentuck, it is accepted that a mere risk or a “remote and speculative risk” to the proper administration of justice is insufficient to justify a limit on openness. What is required is a “serious” risk or a “real and substantive” risk.

Identification to Whom?

Information that is covered by informant privilege is information that “would in fact tend to reveal an informer’s identity” or alternatively, “might tend to identify an informer.” The question is, from whose perspective is the court to determine the question of whether information is “identifying”. Is it from the perspective of the public at large who does not know the informant? Or is it from the perspective of individuals who know him? Or is it from the perspective of the accused? Depending on the perspective taken, the amount of information that could be made public would clearly differ. This is, therefore, a vital question to determine when a court is asked to consider what information would be “identifying”.

In Named Person, Justice Bastarache provides some guidance in resolving the issue of the perspective from which the question of what is identifying information is to be determined. In the context of discussing how to reconcile the absolute protection of informant privilege while accommodating openness, Justice Bastarache stated that:

It is impossible to determine in the abstract how the two principles will be met; judges must use their judgment in following the guidelines set out above, ensure that the identity of an informer is always 'protected, and attempt to promote open courts within that framework.^[33][emphasis added]

The requirement that the informant privilege be “always” protected means that information is identifying if it might tend to identify the individual as an informant to anyone who does not already know he/she is an informant. To say that information will only be treated as “identifying” if it might tend to identify the informant to members of the general public is inadequate to ensure that the privilege is “always” protected. Such a perspective could result in a person being revealed to be an informant to those who know him or even to the accused. This would be inconsistent with the absolute protection of the privilege.

Who Bears the Onus of Proving that the duty to accommodate openness has been satisfied

Under the Dagenais/Mentuck test, the party seeking to limit the presumption of openness bears the onus of satisfying all the elements of the test. In Named Person, the majority does not specifically address the question of who bears the onus of establishing that the duty to accommodate openness has been satisfied. It does not specifically say who is required to justify the withholding of information from the public on the basis that it might tend to reveal the identity of a confidential informant. An argument could be made that it is the court that bears the onus since it has been assigned the duty to accommodate openness. Placing such an onus on the court would not be unprecedented. In Mentuck, for example, a unanimous Supreme Court held that the where a limit to openness is sought but no one comes forward to press the interest in openness, the court is required to independently consider the interest in openness.^[34]

The problem with placing the onus on the court to determine if the duty to accommodate has been satisfied is that the court is not in the best position to determine what information might tend to reveal the identity of a confidential informant. Information as to what is potentially identifying information would likely be possessed by the crown and/or the confidential informant but not the court. However, rather than throwing up its hands and saying that it cannot determine what information is identifying, a court should -- pursuant to its duty to accommodate openness -- ask the informant & crown to demonstrate why a particular piece of information must be kept from the public in order to protect informant privilege. Presumably, either or both of these parties should be able to demonstrate why a piece of information might tend to identify the informant. If they are unable to do so, then the court ought to conclude that the information is non-identifying and should be disclosed.

The Least Intrusive Limit on Openness

Pursuant to the Dagenais/Mentuck principles, the party seeking to limit openness to prevent a serious risk to the proper administration of justice must satisfy the court that the means sought to prevent the risk violates freedom of expression as little as possible. In Named Person, Justice Bastarache similarly recognizes an obligation to use the “least intrusive limit” to protect informant privilege as part of the duty to accommodate openness. He states:

The question that the just must ask is this: is a totally in-camera proceeding justified on the basis that only an in-camera proceeding will properly protect the informer privilege, or will sufficient protection be possible via other means, such as a partial in-camera proceeding or some other option? The guiding rule at this stage should always remain the following: the judge must accommodate the open court principle to as great an extent possible without risking a breach of the informer privilege. This rule is meant to protect informer privilege absolutely while minimally impairing the open court principle.^[35]

Justice Bastarache further noted that a completely in-camera hearing would be the exception rather than the rule:

...The correct result will of course depend on the circumstances of each case, but certain parameters are clear. On the one extreme is a case which must be heard entirely in-camera. On the other side would be a situation in which the facts of the proceeding are sufficiently remote from the confidential informer’s status as an informer so that much of the proceeding could be heard in open court without disclosing any information that might tend to reveal his or her identity. In the most extreme case, perhaps no in-camera proceedings would be necessary, and the informer might be able to be present in open court, hidden behind a screen. In the middle lies what I think will be the typical case, in which some of the proceedings — in particular any parts in which the informer’s identity might be revealed — are heard in-camera and other aspects — those in which there will be no risk of disclosure of the informer’s identity, likely including many legal arguments — are heard in open court.^[36]

An in-camera order is clearly the most significant limit on openness that a court can impose. There are many alternatives to a complete in-camera hearing that a court ought to consider and find to be ineffective before ordering that proceedings go in-camera. The following are alternatives that can be used alone or in combination to protect openness without having to go in-camera.

Not Referring to Identifying Information in Open Court

To the extent that the court can determine, in advance, what information might tend to reveal an informer’s identity, the court can avoid an in-camera hearing by having the court, the Crown or anyone else who knows the identity of the confidential informant not refer to identifying information in open court. So, for example, the name of the informant can be replaced by a pseudonym, i.e. Mr. X. The address of the informant can be referred to as the address. See also discussion under judicial editing.

A court may be reluctant to adopt such an approach out of concern that the name of the informant may be inadvertently disclosed. This is a legitimate concern – particularly with witnesses during a heated cross-examination. However, while what witnesses may say on the stand is often unpredictable, a number of steps can certainly be taken to avoid inadvertent disclosure of identifying information. The court can instruct counsel to remind their clients – prior to testifying – that they should not state identifying information in open court. The court can instruct the witness at the beginning of his or her testimony to not disclose identifying information and can repeat that instruction as necessary, i.e. at the beginning of each day’s testimony or following breaks.

Judicial Editing of Documents that Contain Identifying Information

Where documents contain identifying information, one alternative to sealing those documents in their entirety is to redact or edit them to remove identifying information and provide the public and media with access to what remains. Such editing to protect informant privilege is regularly done where wiretap packets are disclosed to the accused and the trial judge is required to remove information in the packet that may tend to identify confidential informants: See R. v. Garofoli, [1990] 2 S.C.R. 1421 at 1460 per Sopinka J.

Judicial editing has, however, been rejected as an option in circumstances where there is an anonymous informant such as someone who leaves a telephone tip for “Crime Stoppers” without identifying himself/herself. In such circumstances, the Supreme Court of Canada has said that judicial editing is not an option as it is not possible to know what information might tend to identify the informant without knowing who the informant is. In Leipert, Justice McLachlin noted the following in respect to a request for access to an edited version of an anonymous tip sheet recording details of a call made to Crime Stoppers:

...The scope of the rule extends not only to the name of the informer, but to any details which might reveal the informer’s identity. It is virtually impossible for the court to know what details may reveal the identity of an anonymous informer. The same considerations apply on challenges to search warrants or wiretap authorizations. [emphasis added]

These considerations suggest that anonymous tip sheets should not be edited with a view to disclosing them to the defence unless the accused can bring himself within the innocence at stake exception. To do so runs the risk that the court will deprive the informer of the privilege which belongs to him or her absolutely, subject only to the “innocence at stake” exception. It also undermines the efficacy of programs such as Crimestoppers, which depend on guarantees of anonymity to those who volunteer information on crimes.

There may be cases where the informer and his circumstances are known, in which the court can be certain that what remains of an informant document after editing will not reveal the informer’s identity. When, however, as in the case at bar, it is impossible to determine which details of the information provided by an informer will or will not result in that person’s identity being revealed, then none of those details should be disclosed, unless there is a basis to conclude that the innocence at stake exception applies.^[37]

The Ontario Court of Appeal has recently read Leipert as going farther than saying that judicial editing is not effective in circumstances where there is an anonymous informant. In R. v. Omar, a case which involved an informant who was known to the police, Sharpe J.A. stated, “I do not agree with the suggestion that because Leipert dealt with anonymous informers it has limited application to the facts of this case. An anonymous informer could be anyone. ...” ^[38]However, it appears more consistent with the duty to accommodate openness recognized in Named Person that a court be required to engage in editing unless this cannot be done without compromising the informant privilege. A blanket rejection of editing is inconsistent with the duty to accommodate openness recognized in Named Person.

There will clearly be a reluctance on the part of a court to engage in the exercise of judicial editing because of concern about inadvertently identifying the informant. A court will clearly prefer to not engage in any editing at all and simply seal the entire document as this would clearly protect the informant privilege. However, such an approach would not be consistent with the duty of the court to accommodate openness. Nor would it be consistent with the duty to accommodate openness for a court to accept a bald assertion by the informant or Crown that editing is not possible without compromising informant privilege. If the informant or Crown advances such a position, the court ought to require a plausible explanation for the claim that editing is not possible. Further, beyond information that is clearly identifying, i.e. name, address, phone number, SIN#, the could ought to be satisfied that any other information sought to be kept from the public might tend to reveal the identity of an informant. If the Crown and/or the informant cannot explain how such identification would occur, then the information should be available to the public. A court should also resist the temptation of limiting public access to information because of some vague, undefined or non-specific risk to the privilege. What is protected as privilege is information that “might tend to reveal” the informer’s identity. A remote of speculative risk that information may reveal the identity of an informer simply does not meet this standard.

Audio-Feeds or Testifying Behind a Screen

In those cases where a confidential informant will be testifying in court, it may still be possible to permit the public and the media to have access without compromising informant privilege. The witness could, for example, testify behind a screen. Alternatively, the public could be allowed to hear the audio from the testimony in a separate room. These alternatives impose some burdens on the court and its staff. However, having regard to the explicit obligation on the court to accommodate openness, these are burdens which a court ought to be prepared to meet. Issues as to how to deal with confidential informants should form part of pre-trial preparations.

Publication Ban

Any of the preceding alternatives would clearly create a risk of inadvertent disclosure of the identity of a confidential informant. The harm from such disclosure can be minimized by imposing a publication ban on any information that might tend to reveal the identity of the informant.

Providing the Public with Transcripts of In-Camera Proceedings

In those cases where it is necessary to go in-camera in order to protect informant privilege, a court should consider making edited transcripts of those proceedings available to the public and the media. Transcripts could be edited to remove any information that might tend to reveal the identity of an informant. Again, this would place a burden on the court and/or Crown. However, this would be consistent with its duty to accommodate openness.

The Role of the Media in Assisting the Court to Accommodate Openness

In Named Person, Justice Bastarache recognizes that there may be a role – albeit a very limited one -- for the media in assisting the court in deciding how to accommodate openness where informant privilege is found to exist^[39]. Since the media will clearly advocate the interests in openness, the recognition of a limited role for the media is a further recognition of the duty of the court to accommodate openness.

Notice

With respect to notice to the media, Justice Bastarache rejected that the media had a right to notice of an application to go in-camera to protect informant privilege. Instead, he held that whether notice is to be provided is in the discretion of the judge hearing the application. However, once the decision is made to grant notice, it must be provided to all “interested parties”. Justice Bastarache stated:

A judge faced with an informer privilege who believes that it is in the interests of justice that notice of it be given ought to post in some public forum – ideally in hard copy at the courthouse as well as in electronic format over the internet – a notice to all interested parties regarding the existence of a proceeding in which informer privilege has been invoked....

The decision to post a public notice regarding the existence of the proceeding is a matter of discretion on the part of the judge. In other words, no one has a right, constitutional or otherwise, to be informed of all situations in which informer privilege is claimed. ... It would be unworkable and unreasonable to expect that literally ever time an in-camera proceeding is taking place, a judge has the obligation to publicize its existence and invite submissions from all comers on whether that proceeding should be held in-camera. Nor should a judge choose “worthy interveners.^[40]

Nature of Submissions to be Provided by the Media

Where the media is granted standing, Justice Bastarache held that its role is to “present arguments on how informer privilege can be respected with minimal effect on the open court principle.”^[41] The media is not to be involved in the determination of whether informant privilege exists.

Only Non-Identifying Information is to be Provided to the Media

To assist it in making its submissions, a court may provide media counsel with non-identifying information. The judge is to ensure that “minimal information should be given, that is, only that which is essential to make a legal argument of assistance to the judge.”^[42]Justice Bastarache recognized that “it is possible that the sensitivity of the information is such that the only way to ensure the protection of privilege is to insist that the information not be disclosed beyond counsel.”^[43]It is unclear how non-identifying information could ever reach this level of “sensitivity”. However, in such cases, the media counsel will be required to provide undertakings to not share even the non-identifying information with their clients as a condition of receiving it.

The Named Person decision appears at first to be a blow against the presumption of openness of court proceedings. Whereas Dagenais/Mentuck principles forcefully protect the presumption of openness against fair trial interests and the proper administration of justice, confidential informant privilege is stated in Named Person to be absolute and not subject to compromise. However, on closer inspection, the decision does in fact provide ample recognition and protection for the presumption of openness even in court proceedings involving confidential informants. The recognition of a court’s duty to accommodate openness even when absolutely protecting informant privilege will ensure that proceedings involving confidential informants will remain as open as possible. We can expect that the duty to accommodate will – as have the Dagenais/Metuck principles – ensure greater openness in all court proceedings involving confidential informants.