By AdvocateDaily.com Staff
When four British Columbia police officers facing trial in the notorious Surrey Six case tried to get permission to reveal information about confidential informants to their lawyers, the defence bar pricked up its ears, says Toronto criminal lawyer Melanie Webb.
Did this mean that new avenues to glean exculpatory information from confidential informants might be opening up?
However, in a ruling this summer, the Supreme Court of Canada (SCC) left no doubt that the answer is no. There is still only one exception available to accused people to pierce the privilege of informer confidentiality: the innocence-at-stake test, says Webb, principal of Melanie J. Webb Barrister.
“Unfortunately for the officers and defence lawyers in this case, the Supreme Court reiterates again in this decision that there are no other exceptions to informer privilege besides the innocence-at-stake exception,” Webb tells AdvocateDaily.com. “There’s no leeway, there’s no wiggle room for a case-by-case weighing of unique circumstances.”
The Surrey Six investigation involves 80 confidential informants, “an astonishing number,” says Webb. The four officers are charged with breach of trust, fraud, and obstruction of justice, all related to their alleged conduct with a witness.
In the ruling, the SCC considered whether police officers facing charges over their conduct in an investigation could, at their own discretion, disclose to their defence lawyers informant-privileged information that might reveal the identity of a confidential informant, Webb explains.
“The interesting issue that arises here is the conflict that occurs in the relationship between a lawyer and his or her client — who happens to be a police officer — which is often thought of as sacrosanct, and the obligations to protect informant privilege,” Webb says.
Legislation protecting confidential informants provides only one exception to the cone of silence around their identity: when an accused person’s innocence is at stake, a judge may rule that it outweighs the informant’s privilege. The accused’s lawyer must bring a successful McClure application to prove this in court before any privileged information related to the informant can be disclosed, Webb says.
“The McClure test is a very, very high test,” she says.
The police officers’ lawyers argued the test did not apply in this case. They argued that barring the officers from revealing information to their lawyers would put a strain or tension on the solicitor-client relationship.
Webb says, as a defence lawyer with some experience representing police officers, she has some sympathy with that argument.
“Normally, lawyers and their clients are supposed to be able to have a full, frank, unfettered discussion. A lawyer doesn’t want a client to hold back any secrets. And defence lawyers are not allowed to out an informant willy-nilly, any more than a Crown, or police officer, or anyone else is.”
The restriction sets up a roadblock to communications between lawyer and client, she says.
“And the lawyer can’t even start digging around and asking probing questions to try to get to the root of the issue,” she adds.
When reading the SCC decision, she says, “It struck me that it’s not always obvious to a client what is and is not relevant, and how it could impact your own case. No disrespect to police officers, but it’s very different being a lawyer and being the client, no matter who you are and how familiar you may be with the law.”
However, the top court rejected the officers’ argument, stating if lawyers received the confidential information before having made a successful McClure application to use it, they would be put in an awkward position with a conflict of duties.
“On one hand, they’d have the duty to vigorously and resolutely defend their client, and on the other, they must not say or do anything that might even inadvertently reveal the informant’s identity,” Webb says. “It’s literally a minefield the lawyers would have to tread.”
Webb points out the officers were not arguing that informant-privileged information they wished to disclose would meet the innocence-at-stake test.
“They weren’t even arguing that any of that information was genuinely relevant to the defence. That, of course, weakens their argument. They were only saying it may be relevant, not that it will be relevant, my life is on the line, my innocence is at stake.”
The SCC said there is no exception to pierce informant privilege based solely on the “speculative possibility” that relevant exculpatory information might be revealed. It reaffirmed that the innocence-at-stake exception is still in place as the correct standard, with no other exceptions.