Type of document: Prosecution Directive
Effective date: November 14, 2017

Experience has shown that the use of in-custody informers may pose a substantial risk to the proper administration of justice. Prosecutors must be aware of the dangers of calling in-custody informers as witnesses. Policies are in place to prevent an injustice that occurs when an in-custody informer falsely implicates another person.

An in-custody informer is someone who claims to have received one or more statements from an accused person while both are in custody about offences that occurred outside the custodial institution. The accused person need not be in custody for, or charged with, the offences to which the statements relate. Excluded from this definition are informers who claim to have direct knowledge of an offence independent of the statements provided by the accused person.

Because of the potential risks posed by reliance upon evidence of an in-custody informer, there must be a compelling public interest to tender evidence from an in-custody informer. A decision to seek to tender this evidence must be the product of a rigorous, objective assessment of the in-custody informer’s account of the accused person’s alleged statement, the circumstances in which that account was provided to the authorities and the in-custody informer’s general reliability.

In circumstances where the Prosecutor becomes aware that an in-custody informer has the intent to mislead and make a false statement with respect to an accused person, the case must be directed to the Crown Attorney. The case will then be investigated.

Calling an in-custody informer as a witness

Depending on the nature of the proceedings, a Prosecutor who seeks to tender the evidence of an in-custody informer must obtain the approval of the Crown Attorney, the Director, the In-Custody Informer Committee and/or the Assistant Deputy Attorney General - Criminal Law Division.

Preliminary nquiry

If the Prosecutor seeks to tender the evidence of an in-custody informer at a preliminary inquiry, the Prosecutor must bring the matter to the attention of her Director.

The Director must determine whether the in-custody informer’s evidence can be used at the preliminary inquiry or if the case should be referred to the In-Custody Informer Committee for a decision.

An in-custody informer can only be called as a witness at a preliminary inquiry with the approval of a Director or the In-Custody Informer Committee.


A Prosecutor who forms the opinion that there is a compelling public interest in relying on the evidence of an in-custody informer at trial must refer the case to the In-Custody Informer Committee.

The Committee will consider the materials submitted by the Prosecutor, and absent exceptional circumstances, will meet with the Prosecutor to discuss the case before making its decision.

An in-custody informer can only be called as a witness at a trial with the approval of the In-Custody Informer Committee.

The deliberations of the Committee are privileged and will not be disclosed.

The existence of a public interest in proceeding with a prosecution based solely on the unconfirmed evidence of an in-custody informer is exceptional. In these circumstances, approval to tender the evidence must be approved by the Assistant Deputy Attorney General – Criminal Law Division as well as the In-Custody Informer Committee.

Agreements to testify

An in-custody informer must never be given consideration that is conditional upon the accused’s conviction.

Any agreements made with in-custody informers relating to consideration in exchange for information or evidence must, absent exceptional circumstances, be reduced to writing and signed by a Prosecutor (other than the Prosecutor assigned to the case), the informer and counsel (if represented). An oral agreement, fully recorded, may substitute for a written agreement. A videotape recording or other type of record, such as audiotape or affidavit, may also suffice.

A Director must approve any agreements respecting consideration and the agreement must be provided to the In-custody Informer Committee.


If the in-custody informer recants their evidence following a decision by the In-Custody Informer Committee and the Prosecutor determines that the evidence of the in-custody informer should be tendered, the matter must be referred back to the Committee and the Director.

Where the in-custody informer is charged with additional criminal offences and/or seeks additional consideration, the Prosecutor must notify her Director who reviewed the original file, who will then determine whether the In-Custody Informer Committee ought to reconsider the matter.

The In-custody Informer Registry

The Ministry of the Attorney General has established an In-custody Informer Registry. The Chair of the In-custody Informer Committee is responsible for updating the registry with information provided by Prosecutors and the police.

Prosecutors who become aware of individuals coming forward to act as in-custody informers must forward to the Committee the name of the potential in-custody informer and the result of any investigation into the statement of the informant regardless of whether the Prosecutor seeks to use the informant’s evidence. These names and this information will be included in the In-Custody Informer Registry.

The Prosecutor must forward to the Committee the outcome of a prosecution where an in-custody informer was permitted to testify at a preliminary inquiry or trial. These results will be noted in the In-Custody Informer Registry.