Secret Informant, Secret Court

A court decision appears online with almost everything blacked out: no registry, no lawyers, no location, no hearing date, and even the judge’s name is removed. All we’re left with is a disturbing question at the heart of Canadian criminal law: can someone become a confidential police informant without ever being clearly told they are one, and if so, what does that do to open court principles and public trust?

We walk through confidential informer privilege from the ground up, including why it is treated as near-absolute in Canada and why it can protect informants who are unreliable or acting for personal gain. Then we get into the moment that triggered the whole fight: after hours of a stalled interview, a detainee asks for a pen, writes “informal” on their hand, hides it from the camera, shows it to an officer who nods, and the recording suddenly goes off. The judge ultimately finds an implied promise of confidentiality on a balance of probabilities, despite the Crown’s opposition, raising real-world issues about secrecy, disclosure, and how policing actually works.

Then we shift to the Court of Appeal of British Columbia and a practical courtroom battle with huge stakes: when should a witness be allowed to testify by Zoom or Teams under the Criminal Code? In a referred murder conviction appeal after 17 years in prison, an officer who admitted recording key gunshot timings incorrectly wanted to testify remotely to avoid travel. The court said no, stressing the presumption of in-person evidence when credibility and fairness are on the line.

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Follow this link for a transcript of the show and links to the cases discussed. 

Transcript

Why A Decision Is Fully Redacted

Adam Stirling 0:19

It involves competent complex informants and it involves very complicated sensitive matters. And you're the lawyers, so I'm going to let you take it from there.

What Informer Privilege Protects

The Narrow Innocence Exception

The Pen, The Hand, The Nod

Crown Pushback And Judge’s Ruling

Should Secret Judgments Be Published

Michael Mulligan 0:28

Sure. The no-doubt of sensitive matters, it's a really unusual decision that was just posted on the Supreme Court website, which I'm sure all listeners are routinely just reading through themselves. But the court will post judgments on their website. And this particular one caught my attention because it's listed as Rex versus unnamed person. And the uh other interesting elements to it, on the front page of a court decision, there's usually a bunch of sort of tombstone information like who was the crown? On this case, redacted. Who was the person involved? Redacted. Where did the hearing occur? Redacted. Who's the judge? Redacted. When was the decision released? Redacted. Uh and at the top of it it says corrected judgment. The text of this redacted judgment was corrected on the cover page with the addition of this correction notice to re reflect a release date of December 31st, 2025, New Year's Eve, for the purpose of publication. And then place and date of judgment redacted. And so it would appear that that date was picked and is not that is not even uh indicated. It seems like that's sort of a a date selected, like Mr. X or something. Uh and so that's quite unusual, right? You can't even tell what registry it came from, who the judge was, who were counsel, and what who was involved. Now, that is a stark departure from how decisions are usually released because what we do is supposed to be public. You know, we can see what's going on and who's making the decision and who is it about. Now the reason it's been dealt with in this highly redacted fashion uh is it involved a decision about whether the unnamed person uh was a police informant. Now, we do have this concept of confidential informer privilege, uh, and there are a bunch of things that get attached to that. If you turn out to be a confidential police informant, um, and they include things like uh virtually absolute privilege in terms of your identity. Uh sometimes there can be steps taken to uh protect the person, maintain that. There are a whole bunch of things that flow from that if you're a ple confidential police informant. Now, you might wonder how can that be controversial? Uh and the reason that it was controversial and was controversial in this pla in this particular case is that you can become a confidential police informant uh either by uh expressly being told, hey, you're a police informant, this will be privileged, right? Or if there's an implicit promise of confidentiality uh to the usually police officer, but the language is investigating authority, uh, that you will be treated in that fashion. And in this particular case, it was a circumstance where the person claiming the privilege, the crown didn't want them to be a police informer. And they denied that they were one, and so they litigated it. Um and so the first of all, the court takes the time, whoever the court was, uh whoever the judge was or justice was, uh to set out some of the justification for why we have confidential police informants. Uh and the language typically used that they repeat there is that they are an indispensable tool in the detection, prevention, and prosecution of crime, as it enables the police to obtain information that would otherwise be difficult if not impossible to gather. So that is the rationale for having such people. Uh the other thing pointed out uh in the decision is this, which people should be well aware of. This the privilege is not only extended to those with good intentions or good character. In fact, quote, the rule can operate to the advantage of the untruthful or malicious or revengeful or self-interested or even demented police informant as much as one who brings information from a high moral sense of civic duty. And there's a citation for that. And so, first of all, I'd point out that being a categorized as a demented police informant may not be the uh the best uh thing you could have going for you. You certainly don't want on your business card. I'm not sure what the demented police informant Halloween costume looks like. But the concept is not all these people, and many of them wouldn't be, uh of high moral standing, right? Sometimes it's an effort to, of course, get something, right? Some police informants are paid uh or relocated or uh have all sorts of or have charges against some state or some other advantage uh that they might get for providing that kind of information. And you may never know about it, right? You could just be, well, the crown just decides to release the person on bail, or they accept uh uh a deal for the person, or no charges are approved, or various things happen. Uh and the idea is all of that and the fact that the person's status would be kept secret from everyone. Now, the privilege, as I mentioned, is close to absolute. It's only subject to what's referred to as the innocence at stake exception, where an accused person in a criminal case, if they can prove the only way to prove their innocence is if the police informant is required to be identified so they can be called as a witness. Because that's the other thing. Police informants don't come and testify, they're ordinarily secretly police informants, right? But let's say the police informant's advice to the police was I was there at the scene of the murder and I say it was Adam, right? You might say, Well, hold on, I didn't murder anyone. And if that's the only guy that was there, I need that guy. So that there's that narrow exception, but if the defense makes out that that's it's the innocence of the person is at stake, the result can be just the charges are dropped rather than identifying the person. That's often the outcome of that. And so here it's a circumstance where this person, the unidentified person, could they even clear it could be male or female, and as un they don't say which police department or where this was, had been arrested for a serious offense of some kind, no indication what that was. The police had been interviewing the person uh for two and a half hours and basically got nothing from them. Uh and then what happened is the unnamed person said to the unnamed police officer, Can I use your pen? To which the police officer responded, Oh God may give you some indication of the character of the person, maybe they are a demented police informant. So the police officer, oh God, can I use your pen? There's then some reassurance that they weren't going to use the pen violently, and the police officer hands over the pen. And the person the police the person takes it and writes on their hand the word informal and is careful not to show that to the camera. The police officer leans across the table, looks at the person's hand, uh, and then says something to the person uh along the lines of uh okay, so nothing else to add, uh and then turns off the recording. Uh they had a recorder. Uh and you can see it on a video, uh, and the person testified uh that after seeing the hand, the informal, the police officer nodded their head up and down uh a little, and that was recorded, and the person testified about it, and the officer agreed to the nodding. Uh and the officer claimed, however, that they were just nodding agreement to hearing something or acknowledgement, but not agreeing. But then the officer picks up the recorder and turns it off in a dramatic fashion, uh, and then leaves the room, the person rubs off what they've written on their hand, the officer comes back after thirty seconds. At this point, they have the tape recorder, the recorder secreted in a pocket, but they've turned it back on. Uh, and the officer it's hard to hear because there's just a rustling sound on this recording and murmured conversation, so it's really hard to say exactly what's being said. But they then get up, walk out of the room. This is after those two and a half hours where nothing's being said, uh, and in another location that's not as clearly recorded in the police station, um, you can hear this muffled conversation, and then you can hear the police officer say we want to put bad guys in jail, like and and then there's further and then you hear another police officer, please officer B clearly say, If you guys want to hang out here and then walk away, then the unnamed person can be heard sir saying something quietly, which is redacted from the decision, uh, and the unnamed person testified the information was about other criminal activity. The officer A acknowledges uh that he understood the person was telling him about this, uh, and then there's further low volume conversation you can't make out of the secreted recording device. Now, the judge found that uh everyone clearly understood the person and the police officer what the word informal meant, good tip if you want to become a police informer, written on the hand, that they wanted to do that. Uh but the police officer denied that they made an express offer to turn the person into an informant. Now, that didn't end the inquiry. The judge accepted that they didn't formally tell the person they were going to be a police informant, but that didn't end the inquiry because the person can become a uh a secret police informant if they have a reasonable basis to believe that that's what was going on. Uh, and so based on those various factors, the handwriting, the naw the nodding, the turning, the dramatic turning off of the device, what the other officer said, what was picked up on the secreted recording device uh about wanting to put bad guys in jail, uh the uh judge was satisfied uh that that was enough for the person to reasonably believe they'd become a police informant uh and when they were providing that information. Uh and that uh, you know, this wasn't some made-up story. But the crown opposed the person being found to be that because it has various implications in terms of, for example, maintaining secrecy about what was said. And it can have uh they were concerned about how this could potentially interfere with other legitim other police investigations. Somebody was making this kind of thing up, and you could have to have hearings about it, and inf you know, issues about can the uh uh crown use things that they maybe got the person to say uh in a recording, maybe in their own trial. Uh and they even made a suggestion that uh those facing charges shouldn't become confidential informants. That's really interesting, and that's not how these things often operate. That didn't get any traction from whoever the judge was that decided this case. Uh and so at the end of that, despite all the concerns the Crown had, and despite opposing it, the uh judge concluded that it was more likely than not, and that's the standards of balance of probabilities, that the police made an impl implicit offer of confidentiality, and that it was reasonable for the unnamed person to believe that uh informer status was being bestowed upon them uh as a result of what the redacted, uh what they the redacted until Officer A told them that no privilege would be extended. So the uh result of that is that measures will then need to be implemented, the judge says, uh, to protect the informer privilege, uh, and will have to be determined in future proceedings what all will be accorded them uh as a result of that. So it's just a fascinating case, both in terms of just sort of how much effort has been put into keeping everything secret, including who the judge was, where this happened, when this happened, who the person was, who the police officer was, what charge they were facing, all of that we do not know. Uh, but uh we do know that at some at some point some judge made the decision that some person uh was a confidential uh informant uh on that basis. Uh and uh it it's a live question whether we will ever find out uh what measures will need to be implemented uh in order to protect the uh informant uh in oh yeah, in this case, uh given the degree of uh secrecy that's imposed. I so I guess we'll never know whether this person was a demented informant, a malicious one, revengeful. Uh but uh I think perhaps the officer's reaction of oh God would ask for a pen may give you some hint as to the sort of person who was being dealt with. So that's the latest from well, we don't know if it's the latest, it could have been a long time ago. A recently published decision by the uh DC Supreme Court dealing with uh secret informants.

Adam Stirling 12:43

I have to ask, what is the utility in publishing anything at all in a matter like that?

Michael Mulligan 12:48

Well, it's a real tension, right? Because there's a really high expectation that things the court are doing is going to be public, we're gonna know what they're doing, how decisions were made. It is a real exception that things are gonna occur in secret, right? We don't live in communist China. You do not want secret court decisions and secret hearings going on. It's clear that this entire hearing was conducted in camera, so in in secret. The degree of redaction here is quite remarkable, including not only all those factors that might directly identify people, but things like who is the judge? I don't know how that's identifying the the person. I guess there was some concern that even knowing when this decision was made might identify the person or who the crown was. Um all of that's gone. And so we do have at least the reason decision. We can look at this, we can we can know this was done, we can see the basis upon which the decision was made. We know that some police officer somewhere did this, but that's all. And so certainly I would say it is much better that at least we know this is going on. People can form their own judgments about that decision and you know consider for themselves whether, for example, is this an indispensable tool in the detection and preservation and prosecution of crime? Do we want to live in a country where we have demented, self-interested, potentially lying, secret police informants? Do we want that? You know, it's not necessarily the case that everyone is going to agree, yeah, it's indispensable that we have demented police informants. Uh you know, I think some people might reasonably say, no, maybe that's just too high a price to pay. Uh, but uh that is not the law in Canada. The law in Canada is that we have this near absolute privilege which can be bestowed on somebody even by implication. Uh and so I do think it's important that this be released and we talk about it. People can think about that. And, you know, you'd ask yourself, do you want that? Is that indispensable? Do we want to live in a place where we have this going on? But the wing uh is that uh no doubt sometimes this will detect uh criminal activity, although, as pointed out here, the other thing the Crown argued unsuccessfully, and it's amazing they argued it, they also argued that the privilege should only accrue if it turns out that the information provided turned out to be helpful. Now, think about that. As the court quite quite quite reasonably pointed out, very few people, if any, would be willing to make an offer to provide confidential information with their privilege only attached after the police determined it was useful, right? That would be, hey, I was in the criminal underworld gang lair and I saw so-and-so do this. Well, turns out we already do that. Not helpful at all. We're calling you as a witness, right? You find yourself waking up dead. Right. So, you know, uh I it's really quite remarkable that you had Crown making some of those arguments. They didn't get any traction, but boy, you know, they argued that uh only to the extent if it turned out to be useful. Wow. Uh but anyways, uh that's that's the latest. It is important we know about this, but it's much less information than we would have. So that's what really caught my attention with this thing popping up as a December 31st, 2025 decision uh in the cases that were published on the website uh this week.

When Video Testimony Is Allowed

Adam Stirling 16:03

Michael Mulligan, it's right after this. How does that work?

Murder Appeal And The Need For Live Evidence

Michael Mulligan 16:31

So this case will actually have some reasonably significant impact, I think, sort of on practice in BC. Uh, and it has to do with the interpretation of a section of the criminal code which permits witnesses to give evidence by audio or video conferencing if the court is of the opinion that it would be appropriate having regard to all the circumstances. And then there's like a list, kind of a grab bag of things uh that uh a judge would need to think about, like the location of the person or costs involved, or the nature of the anticipated evidence, this kind of thing, for a judge to make that decision. And as the Court of Appeal points out of this case, video tech, you know, video conferencing technology has really developed and is used a lot, right? It really took off, of course, during COVID, uh, but it it's really been become sort of more routine. We've all become used to, you know, being on Teams or Zoom or whatever it might be, and is used in the courtroom a lot. And in the right circumstances, often by agreement and to pretty good effect, right? There are certainly categories of witness where there's no particular, you know, you need the evidence, but you know, there's no real issue about is this person being truthful or, you know, the substance of their evidence. And examples of that would be often things like, you know, let's say some professional expert witness on some point or other, right? So yeah, you need this evidence before the judge, but nobody's suggesting that Dr. So-and-so is making it all up or something, right? They're just there to provide uh some evidence of that kind. Now, this particular case is an interesting one. It's a case that involves a appeal from a murder conviction, uh, where the uh Minister of Justice was persuaded to refer it to the Court of Appeal for an appeal long after the conviction. This person had been incarcerated for 17 years, uh, and the Minister of Justice was persuaded to refer it to the Court of Appeal on the basis that they concluded there was a reasonable basis to conclude that a miscarriage of justice uh likely occurred. Now, these I should say are are often uh things that are pursued uh by the innocence project uh that uh sort of runs that, you know, will run these kind of long, uh, long-a-go cases where there's some reason to think you may have an innocent person who's still in prison. Um and so it's in that context that there was an application for fresh evidence to be heard by the Court of Appeal. And now that's also unusual, right? Usually you hear evidence at trial and the Court of Appeals looking at was there some mistake or whatnot. But here, new uh information came out, and part of what came out was important. It was a case involving this murder where the accused had an alibi that they were at work. Uh, and in order to sort of make the timing work so this person could have committed the offense, exactly when the murder, apparently by gunshot, uh occurred. Uh and one of the investigators has admitted that they had made errors recording the time of when witnesses said they heard the gunshots. The main means the person was at work and cannot have done it. Uh and it was necessary to pinpoint the exact time to make it even possible that this guy committed the crime. And he's admitted that he got it wrong. And so you have this person who's been in prison for two for 17 years, uh, and the defense on this appeal wanted to hear from two police officers, which has been ordered. One uh they agreed to be by video, the other one was the person who admitted they wrote it down wrong, or for some reason recorded the wrong times. And that's the one for whom it was a dispute about should that person be allowed to testify by video. The person lived in eastern BC, uh, and so the court said, look, you know, he's retired, he's got some flexibility. He says it will delay some home construction project by two days if he has to come to Vancouver. It may be mildly inconvenient, uh, but pointed out that there is a presumption that witnesses are to testify in person. That is the starting point. It is the norm, and that remotely doing it uh is an exception. Uh, and went through that case and some of those factors and found that it just wasn't made out here. Given that you're dealing with sort of issues about your credibility, reliability, even though this person no longer is presumed to be innocent, it's an important thing. The guy's been in prison for 17 years uh and found that fairness dictates that the uh person be able to get that evidence in uh in a live way, not having the person hook up by Microsoft Teams. And so the Court of Appeal, analyzing all of that, denied the Crown application. Look, it's two days, but it's an important matter, get out here. And so the case is important not only on that particular fact pattern, but as something that'll likely be looked at by trial courts in the future where there is a presumption of innocence when deciding, you know, should we be allowing that when it's controversial? Uh and something is lost, of course. And so my expectation is this will have an impact, and it'll likely mean more of those kind of, you know, the expert witness or the non-controversial evidence from the police officer done by video, so that's more efficient. But where there's some real issue like this one, this case will likely be pointed to in the future about why that should happen as but as the expectation is in person. So that's the latest in the Court of Appeal on video for witnesses.

Adam Stirling 21:40

Michael Mulligan with Mulligan Defense Lawyers, legally speaking. Thank you so much, Michael. Pleasure as always. Thanks so much. Always great to be here. All right, bye now. Quick break news is next.