Legislation on the protection of confidential whistleblowers provides only one exception to the cone of silence surrounding their identity: when the innocence of an accused is at stake, a judge may decide that it outweighs the privilege of the whistleblower. The defendant`s attorney must file a McClure application to prove it in court before inside information about the whistleblower can be leaked, Webb says. Reading the SCC`s decision, she says, „I was struck by the fact that it`s not always obvious to a client what`s relevant and what`s not, and how that might affect your own case. No disrespect for police officers, but it`s very different from being a lawyer and being the client, no matter who you are and how much you know the law. „In Basi, Fisch J. referred to the privilege that arises in situations „where, in the course of an investigation, a police officer guarantees the protection and confidentiality of a potential informant in exchange for useful information“. Footnote 44 The Ontario Court relied on this passage in Basi v Kaboni, in which a 911 appellant provided police with information about an impaired driver. It was only later that she requested anonymity. The judge ruled that the 911 appellant did not have the status of an informant because the police had never promised or guaranteed her confidentiality in exchange for her information. See also R/ChuiFn. 46, where the General Court also rejected the argument that a person had the status of informant if there was nothing in the facts which indicated that the information had been provided in confidence.

Kaboni and Chui illustrate the police`s unsuccessful attempts to retroactively grant informant status to people who submitted informant status when providing a statement or other information to the police. As a defense attorney, Breen is regularly confronted with cases involving confidential police sources. This was the case in Operation Baffle, a drug conspiracy case involving his client Charlie Noftall in 2013. It is generally said that the Crown is not required to disclose the identity of the police informant or to provide information that may reveal his identity. [1] This is particularly the case in cases of drug trafficking. [2] „At common law, privilege is established either in respect of a class (e.g., solicitor-client privilege) or on a case-by-case basis. In a class privilege, it is not so much the content of the respective communication that is important, but the protection of the nature of the relationship. Once the relevant relationship between the user party and the party to whom the trust is placed is established, the lien likely envelops confidentiality in its scope, regardless of the details of the situation. Class privilege necessarily deviates from the judicial search for the truth and is insensitive to the facts of the individual case. Anything other than this general confidentiality, as the case may be, would not give the lawyer`s client or police informant the security necessary to perform the work required by the administration of justice. [Emphasis added] If innocence is claimed, it is by R/McClureFn. 35 proceedings ordered.

McClure includes a threshold test and a two-step innocence test on the game. To meet the threshold test, the accused must prove that (1) the information is not available from any other source and (2) is otherwise unable to express a reasonable doubt. In R/Brown,Footnote 36 the Supreme Court concluded that the second element of the threshold test was to carefully consider requests for access to information that could reveal the identity of an informant. Access is only permitted if (1) the defendant has proven that he has no other defence, and (2) the requested information would make a positive difference in the strength of the defense. If the threshold test is met, the judge must proceed with the following two phases: In the decision, the SCC considered whether police officers accused of their conduct in an investigation could, at their discretion, disclose to their defense lawyers information that could reveal the identity of a confidential whistleblower, Webb explains. Sometimes, contrary to the Crown`s position, the courts may order the disclosure of the informant`s identity or the informant`s appearance. Crown counsel has a number of options that may vary depending on the facts of the case and the level of court where the problem arises: rely on a confidential informant „to determine whether the informant`s information is convincing, credible or confirmed by other aspects of the police investigation.“ [1] „Unfortunately for the officers and defense lawyers in this case, the Supreme Court reiterates in this decision that there are no other exceptions to whistleblower privilege than the innocence exception at stake,“ Webb told AdvocateDaily.com. „There is no room for manoeuvre, there is no possibility of assessment on a case-by-case basis of unique circumstances.“ The informant privilege rule is subject to only one exception. The only real exception is when „the innocence of the accused is at stake.“ .