Informer Privilege And An Illustration Of Illegitimate Delay

As part of his private practice, the author represents the Ontario Association of Crime Stoppers. However, the views expressed in this article are his own. He gratefully acknowledges the feedback of Robert Gill of Clay & Company, who is counsel to the Canadian Crime Stoppers Association, as well as that of Mabel Lai, Crown Counsel.

On May 6, 2005, former Edmonton police detective Ross Barros arranged an important meeting with detectives Kevin Brezinski and Kelly Krewenchuk. Barros had recently left policing to become a private investigator. One of his clients was Sid Tarrabain, a lawyer defending Irfan Qureshi on charges of drug trafficking. Barros decided to investigate the identity of an informer who allegedly tipped the police on Qureshi. The lead officer in the Qureshi investigation was Detective Brezinski.

The morning of May 6, Brezinski and Krewenchuk were scheduled to golf together but made time to see Barros before their game. When they sat down with him at the clubhouse, Barros told them he had identified the informer. The conversation ended Barros's friendship with Brezinski, who once saw Barros as a mentor. It also resulted in charges against Barros for extortion and obstruction of justice.

Barros was fully acquitted in both a first trial in 2007 and a retrial in 2015. The retrial followed Barros's appeal to the Supreme Court of Canada, where Binnie J., writing for the majority, made the following observations in directing a new trial on two of the three counts:

The duty to protect and enforce informer privilege rests on the police, the Crown, and the courts [...] From the perspective of an accused, discovery of the identity of a source, and the circumstances under which his or her information was obtained by the police, may legitimately play a role in making out a full answer and defence.1

Barros had undertaken his own investigation to determine the informant's identity. But when may an accused legitimately seek the court's assistance in pursuing inquiries that will likely identify a confidential informer? And what should be the consequences of seeking this assistance at the wrong time? In this article, I propose to answer these questions from a complementary reading of the Supreme Court's recent decisions in R. v. Brassington and R. v. Cody.2

Informer privilege and R. v. Brassington

My short answer to the first question is that it is never legitimate for an accused to bring any type of court proceeding to identify anyone protected by informer privilege unless this is the only way to stop a wrongful conviction.

Like solicitor-client privilege, informer privilege is a common-law class privilege. It arises when the police explicitly or implicitly promise confidentiality to a source in exchange for information, provided the information is not given to further criminal activity or interfere with the administration of justice.3 Judges have no discretion to vary this privilege unless a criminal accused shows that they cannot raise a reasonable doubt without identifying the informer.

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