Court of Appeal overturns convictions finding Crown breached accused’s confidential informant status

The Court of Appeal for Ontario has overturned a man’s possession for the purposes of trafficking convictions and entered a stay of proceedings because the Crown breached his confidential informant privilege by disclosing information to the co-accused.

R. v. A.B., 2024 ONCA 111 was “one of those rarest and clearest of cases in which the convictions should be stayed for abuse of process,” said Justice Michal Fairburn, who wrote the reasons for the court’s panel.

Chris Rudnicki, who acted for the appellant A.B., says the Crown asserts informant privilege in most cases. Typically, the police receive information relevant to their investigation of the accused, and the Crown asserts privilege because disclosure of the source of that information could place the informant in serious danger.

In R. v. A.B., “the Crown refused to play ball,” says Rudnicki. “The Crown refused to treat the accused’s assertion of informer privilege with the same kind of seriousness that it usually does when the witness is helpful to the Crown.”

When properly invoked, there is no discretion in confidential informant privilege. “It is a near absolute privilege,” said Justice Fairburn in the ruling. The privilege bars disclosure of any information “which might tend to identify an informer” or “any information that might lead to identification,” including any information that “might implicitly reveal” the informer’s identity. In Named Person v. Vancouver Sun, 2007 SCC 43, the Supreme Court of Canada characterized confidential informant privilege as “extremely broad and powerful in scope.”

Fairburn described the rationale behind the “wide berth” granted the privilege. Informants are “instrumental” to criminal justice. When their identities are exposed, there is a “grave risk of retribution.” And denying informants the protection they were promised in return for their information places a chill on the willingness of others to cooperate. Neither the Crown nor the informant can waive the privilege without the other’s consent.

At trial, A.B. unsuccessfully applied for a stay under s. 24(1) of the Charter. The Court of Appeal found that the trial judge erred in dismissing the application by applying the incorrect standard for determining when information disclosure amounts to a breach of confidential informant privilege. The trial judge examined whether documents disclosed to the co-accused “tend to suggest” that A.B. was an informant and concluded A.B.’s concerns were based on “speculation” as to what the co-accused may think. Justice Fairburn said the proper approach “was to ask whether the disclosed information, considered in light of the circumstances, might tend to identify the appellant as an informant.” There was “clear evidence” that met this test, she said.

R. v. A.B. exemplified the kinds of seemingly innocuous facts that may tend to identify an informant, said Justice Fairburn. The trial judge incorrectly approached the matter through the lens of whether the disclosure “may tend to reveal the appellant’s identity” rather than “whether it is likely to do so,” she said.

“The takeaway for Crown attorneys is that they had better guard informant privilege in cases where the accused asserts that just as jealously as they would in a case where the assertion comes from a third-party witness,” says Rudnicki. If they fail to take informer privilege seriously when arrested by the accused, he says, the court will stay the proceedings. “That's what happened in this case.”

An abuse of process is “egregious Crown conduct,” compromising trial fairness or the justice system's integrity. In R. v. A.B., the appellate court examined whether the Crown’s conduct fell into the latter category. An abuse of process calls for a stay of proceedings “on rare occasions, in the ‘clearest of cases,’” said Fairburn. There are three requirements. One, there must be “prejudice to the accused’s right to a fair trial or to the integrity of the justice system that will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome.” Two, there must be no alternative remedy that could redress the prejudice. And three, where steps one and two fail to establish certainty as to whether a stay of proceedings is warranted, the court must balance the interests in support of granting a stay – preserving justice system integrity – versus society’s interest in having a final decision on the merits.

According to the Court of Appeal, the case met the first two requirements.