By Robert Gill
Associate CSI General Counsel
Crime Stoppers is a success because the program overcomes the two main reasons people are reluctant to provide the police with information: apathy and fear of reprisal. Apathy is addressed by offering modest rewards for information. Fear of reprisal is dealt with by going to every possible length to prevent the disclosure of the identity of informants. The assurance of anonymity is widely publicized, so potential tipsters will be encouraged to call in with their information.
Legally, Crime Stoppers can confidently offer anonymity to its callers because of the application of the principle of police informer privilege. This is an ancient rule of evidence, which says that the police do not have to reveal information, which may identify an informant, if to do, so may jeopardize the safety of that informant.
In February 1997, the Supreme Court of Canada unanimously decided that callers to Crime Stoppers programs were entitled to the protection of the police informer privilege (R v. Leipert). The court said that: “informer privilege is an ancient and hallowed protection which plays a vital role in law enforcement. It is premised on the duty of all citizens to aid in enforcing the law. The discharge of this duty carries with it the risk of retribution from those involved in crime. The rule of informer privilege was developed to protect citizens who assist in law enforcement and to encourage others to do the same.”
The Court recognized that in most cases of police informers, the identity of the informer is known to the police. The police are in a position to ascertain if the informer is in jeopardy, and to learn what, if any, of the information received from the confidential source may tend to identify him in the mind of an accused person. However, in a typical case, which started from a Crime Stoppers tip, the identity of the informer is unknown to everyone, even the Crime Stoppers coordinator who took the call. The Court said: “The fact that the privilege also belongs to the in- former raises special concerns in the case of anonymous informants, like those who provide telephone tips to Crime Stoppers. Since the informer whom the privilege is designed to protect and his or her circumstances are unknown, it is often difficult to predict with certainty what information might allow the accused to identify the informer. A detail as innocuous as the time of a telephone call may be sufficient to permit identification. In such circumstances, courts must exercise great care not to unwittingly deprive informers of the privilege which the law accords to them.”
The Supreme Court went on to confirm that the privilege is broad in scope. It applies in both criminal and civil proceedings, and applies to witnesses on the stand (who may not be asked if they are the informer) as well as to undisclosed or anonymous informants. It prevents disclosure not only of the name of the informer, but also of any information that might implicitly reveal his or her identity.
There is only one exception to police informer privilege, and that arises where the innocence of an accused person is said to be at stake. In order to raise this exception, there must be a basis on the evidence to conclude that disclosure of the informant’s information is necessary to demonstrate the innocence of the accused. Mere speculation that the information may prove useful to the defence is not enough. On the other hand, if the evidence before the court suggests that the informer is a material witness to the crime, or even an agent provocateur, “the privilege must yield to the principle that a person is not to be condemned when his or her innocence can be proved.”
There is a temptation to edit a tip sheet to remove information that would obviously reveal the identity of the caller, and then produce the edited version to the defence. The Supreme Court has discouraged this practice, again on the basis that no reliable measure can be made of what information may tend to identity the tipster. An accused may know that only one or two persons knew a fact, which on its surface appears innocuous.
From time to time accused persons or their lawyers will apply to the trial judges for disclosure of all or part of the contents of a Crime Stoppers tip file. All such applications are to be resisted. Steps should be taken to ensure that Crown counsel prosecuting charges arising from Crime Stoppers tips are aware of the protection afforded such information through police informer privilege. It is almost always possible to obtain an adjournment when such an application is made, during which Crown may consult with others if necessary. On occasion, Crime Stoppers programs have successfully had their own counsel appear in the course of a trial to argue the former privilege issue.
The Supreme Court has laid down the following procedure for responding to an application for production of Crime Stoppers information:
- The accused must show a basis on the evidence for concluding that without disclosure his ability to establish his innocence is at stake.
- If such a basis is shown, the presiding judge should review the information in confidence, to determine whether, in fact, disclosure is necessary to establish innocence.
- If the court concludes that disclosure is necessary, the court should reveal only that information which is essential to establish innocence.
- Before disclosing any such information, the court should give the Crown the option of staying the charge, rather than jeopardize the anonymity of the caller.
In virtually all cases, if the matter proceeds to (3) and (4),
The Crown should, in fact, direct a stay. Better to allow an acquittal rather than put at risk the safety of an anonymous caller and the credibility of Crime Stoppers programs everywhere.
THE CALLER -CRIME STOPPERS INTERNATIONAL- INC-