The Ultimate Creation Story: The Confidential Informant as a Creation of Law

Abstract

Our laws have the power to create. Yet, not all it creates is welcome or desired. This article is about the creation of confidential informant or CI status through the strict application of the law of informer privilege. It is also a creation story of how a person, who is also an accused person, unwillingly became a CI, and with that designation became a non-entity in the eyes of the law. With that status the person, Named Person A, faces barriers. As an accused person, Named Person A’s lawyer is not within the circle of privilege and cannot access information which may identify Named Person A as a CI. The only other prospect is to pierce the privilege by fitting within one narrow exception, appropriated from solicitor-client privilege, known as “innocence at stake.” This confined exception provides little relief for the CI-accused and has the broader effect of limiting access to CI information where the accused is not a CI but is already privy to CI information. Although the courts, as recently as the Supreme Court decision of R v Brassington, have stayed firm on this ‘ancient and hallowed’ form of privilege, Named Person A’s story highlights the need to revisit this legal construction. This article takes the reader through the labyrinth of informer privilege to find a more flexible, modern and principled approach to the creation of this kind of legal status. It is in this ultimate creation story of Named Person A, we come to understand the need for a re-write in the law of informer privilege.