Ferreting Out a Rat

As you can imagine, the personalities you may meet over the course of a career in criminal law can be – ahem – colourful. I have frequently marvelled at some of the outrageous things I have seen defendants and complainants say and do but often forgotten in the rich cast of characters that populate a criminal trial is the crown witness. Commonly relegated to side-show status, in many trials a crown witness deserves top billing on the docket marquee along with the accused and complainant. This is particularly so for that most intriguing of animals – the confidential informant (“C.I.”).

Rat. Snitch. Leak. Stool pigeon. The C.I. goes by many names – except for the name his mother proudly bestowed upon him at birth. For decades Canadian criminal law has placed reverent emphasis on the “C” in C.I. – CONFIDENTIAL. It doesn’t require a very vivid imagination to understand why, in many circumstances, a prosecution witness with the temerity to point a finger at the accused might expect a certain degree of anonymity in exchange for his evidence. However, sometimes forgotten in any informant discussion is the strong probability that this same witness might be very highly motivated to get overly creative with the truth to his own benefit. What better way to safely spin a mythological tale than behind the smokescreen of confidentiality?

Balancing these competing issues, Canadian law has long recognized a qualified informer privilege. Where a potential witness seeks to hide his identity out of fear of retribution authorities (including the police, prosecutors and courts) have a legal duty to protect and enforce the confidentiality of the informer. The normally generous disclosure obligations constitutionally foisted upon the crown are curtailed prohibiting disclosure of any details that risk revealing the identity of a C.I. save for the extraordinarily rare circumstance where the accused can establish that his ‘innocence is at stake’ unless the C.I. is unmasked. But, what if the accused takes his own steps to pierce the veil of informer privilege? Does the duty that applies to agents of the state extend to an accused thereby prohibiting him from investigating the identity of a confidential informant?

This was the question facing the Supreme Court of Canada in R. v. Barros 2011 SCC 51. Barros was a former police officer turned private detective. He had been hired by the lawyer for a man named Qureshi who was facing a number of drug-related offences that hinged on the evidence of a confidential informant. Being a former police officer, Barros recognized what most of us, including SCC Justice Binnie writing for the majority, recognize. Namely that, “while some informers are model citizens, others not so much so; some act in the public interest while others may be driven by motives wholly unsavoury.”[at para 38] Also by dint of his former life as a police officer Barros recognized something perhaps a little less obvious to the layperson: when a C.I.’s cover is blown, crown and police will often choose to stay proceedings against an accused rather than continue on to trial where the informant’s identity will become public subjecting them to considerable risk of harm.

In the course of his job as a private investigator, Barros interviewed a host of potential crown witnesses, conducted criminal background checks and acquired phone records (how he accomplished these tasks lawfully in his capacity as a retired police officer is never explained though it raises some intriguing questions). Once his investigation was complete Barros believed he had uncovered the identity of the C.I. who fingered Qureshi. He arranged a meeting with the officer in charge of the case at a local golf course. The two had been friends for many years prior to this case and knew each other professionally. Although Barros never explicitly said as much, the officer testified that he got the distinct impression that Barros was asking him to consider staying the charges against Qureshi or face the prospect of having the C.I.’s name revealed publically in court. Apparently, their past friendship only went so deep. Barros was charged with obstruction of justice and extortion.

The foundation for the criminal charges against Barros rested on his breach of the classic informer privilege – a concept Barros would have been well familiar with from his time as a police officer. In balancing the right of an accused to make full answer and defence and the long-standing duty to protect the confidentiality of informants, the SCC closed the door on a broad general prohibition saying:

The state will refuse to disclose any information that would tend to reveal an informer’s identity, and this will be enforced in the public interest, but the defence, including in this case Mr. Barros in his function as a private investigator, is not bound by any such duty in undertaking its own investigation independently of the courts and prosecution. Of course, a lawful activity may be pursued by unlawful means or for an unlawful purpose.[para. 44]

There is little difficulty in understanding the first half of the SCC’s requirement for lawful attack on informer privilege – if you’re going to try to reveal a C.I.’s identity you still have to obey the law while doing that. Start beating witnesses or stealing data and all bets are off. But what are the implications of a lawful attempt to pierce informer privilege, undertaken by lawful means “for an unlawful purpose”? In Barros’ case, the SCC expressed concerns about the possibility that Barros tried to parlay his information into a stay of proceedings. The golf course exchange with the officer in charge was potentially evidence of an obstruction of justice and a new trial was ordered on that basis.

So, it’s OK for the defence to try to unmask a C.I. provided they do it legally for a lawful purpose. The practical result however of this ruling should send a cautionary note to C.I.’s themselves. The blanket protection once thought to exist is no longer absolute. Moreover, the ‘lawful purpose’ branch of the test creates a scenario where the first time a C.I. may learn that their identity has been compromised is in a very public trial. If the prosecution’s allegations in Barros prove correct, Barros was trying to encourage police to protect their informant by staying the charges. The state of the law post-Barros guarantees that defendants who have succeeded in piercing the veil of informer privilege will sit on that information until cross-examination at their trials when the information might lawfully be used to undermine the credibility of an informant witness. While such an exercise would comply with the ‘lawful means / lawful purpose’ set out in Barros, it may also leave rats scurrying too late from a sinking ship.