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.

Subscribe for more Canadian legal analysis, share this with someone who cares about open courts, and leave us a review. Where do you draw the line between necessary secrecy and the public’s right to see justice done?

 

Legally Speaking with Michael Mulligan is live on CFAX 1070 every Thursday at 12:30 p.m. It’s also available on Apple Podcasts or wherever you get your podcasts.