Court of Appeal Decision of the Week

Confidential Informants & Police: Promise Made, Promise Broken

Case: Nissen v. Durham Regional Police Services Board, 2017 ONCA 10

Keywords: Informer Privilege; Breach of Confidence; Police; Damages

Synopsis:

Margaret Stack lives with her husband Chad and two children “on a quiet street in Whitby”. Ms. Stack went to police, informing them her neighbour’s teenaged son broke into another neighbour’s home and stole guns. Ms. Stack claimed the police promised that her identity and the fact she reported the theft would be treated as confidential – “totally anonymous”. Unbeknownst to Ms. Stack, a recording of her interview with police is videotaped; the recording is included in disclosure materials provided as part of criminal proceedings against the teenaged son.

Ms. Stack is then subject to threatening and harassing conduct by the parents of the accused teenager who had received copies of Ms. Stack’s unredacted police interview. The Stack family is so distressed by this conduct they sell their home and move to another community. Ms. Stack is diagnosed as having post-traumatic stress disorder.

The police deny Ms. Stack was promised confidentiality or that she enjoys confidential informer status. The Trial Judge disagrees and finds Ms. Stack, her husband, and children are each entitled to substantial damages ($345K for generals, no punitives, $65K for Chad, $25K for each child). The police appeal.

On appeal, the police argue the Trial Judge erred in finding a promise of confidentiality, that the elements necessary for a claim of damages for breach of informer privilege are lacking, and that the damage award is excessive. The Court of Appeal dismisses the appeal with costs to Ms. Stack ($40K, inclusive of disbursements and taxes).

Importance:

The Court of Appeal’s decision signals that police who make promises of confidentiality to witnesses can be held to that promise and that a breach of confidence can warrant significant damages.

The Court of Appeal stated that it was not referred to any cases in which damages for breach of informer privilege had been awarded (para. 26). Prior to this decision, Beetz J. stated, in the case of Bisaillon v. Keable, 1983 CanLII 26 (SCC), [1983] 2 S.C.R. 60 at p. 96, that although there was no precedent on point, he would have no difficulty finding an action lies for damages for breach of informer privilege (para. 26). The Court of Appeal in the present case found that it should be decided as a civil claim for damages for breach of confidence (para. 32).

What is required to establish the privilege? For the Trial Judge, a plaintiff only need prove the police made a promise of confidentiality in exchange for information.

The police argued that two additional elements should be required:

  1. that the information provided must be difficult or impossible to obtain; and
  2. that the informer must be likely to suffer harm or danger if his or her identity is disclosed.

The police also submitted a claim cannot be sustained where the “Directive relating to confidential informers” has not been followed (para. 27).

Sharpe J.A. disagreed with the police formulation of the test. For the Court of Appeal, the “fundamental point” is that the police made a promise of confidentiality and anonymity to Ms. Stack in exchange for information: “That promise gave rise to a common law and equitable right entitling Ms. Stack to have her identity kept confidential. Her right was not contingent upon other ways the Police may have had to get the information she provided, or on what the Police thought about the danger she faced.” (para. 33)

The Court of Appeal was not persuaded, “…even in a criminal case”, that difficulty associated with obtaining information and/or fear of harm to the witness are necessary elements to sustain privilege. para. 34)

For Sharpe J.A., if the police tell the witness they will not reveal their identity or involvement in order to get information, they should keep their promise, or face the ordinary consequences of violating the assurance they have given: “Simply put, a citizen in Ms. Stack’s situation should be able to rely upon what the police tell her.” (para. 35)

Counsel for the Appellants: Roger Horst, Rafal Syzmanski, and Lisa Bruni (Blaney McMurtry LLP, Toronto)

Counsel for the Respondents: Margaret Hoy (Margaret Hoy A. Professional Corporation, Niagara Falls)

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Posted: Wednesday, January 25, 2017