Case Report – Significant case on waiver of informer privilege proceeds

In a case on a narrow but novel point of law, Nordheimer J. of the Ontario Superior Court of Justice held that a confidential informant should be given notice of a motion to determine the scope or validity of a purported limited waiver of privilege.

The defendants were police officers who were accused, in part, of mistreating one or more individuals who worked as their confidential informants. One such informant agreed to a limited waiver of privilege to testify in support of the prosecution – i.e., he agreed to testify against the accused while maintaining the privilege as it applied to his other “work” with the police. The defendants argued that there can be no limited waiver of privilege as a matter of law and also argued that limited waiver would cause an unfairness in the proceeding.

The Court rejected the Crown’s argument that the informant had no interest that justified giving him notice:

That submission seems to me to fail to take into account the special position that the CI has in this proceeding. The CI was allegedly mistreated by one or more of the accused officers. He or she may very much wish to come to court and give evidence regarding that experience but, at the same time, not wish to jeopardize their status as a confidential informant more than is absolutely necessary to accomplish that goal. The CI would then have a very direct interest in the determination of whether a confidential informant can give a limited waiver of the privilege.

Nordheimer J. also held that the accused police officers have no standing to argue that the Crown had breached the informant’s privilege (in an attempt to stop him from testifying). While recognizing that a police officer has a duty to protect an informant’s identity, he held that the privilege belongs to the informant and the Crown.

R. v. Schertzer, 2007 CanLII 56497 (ON S.C.).

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