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

Confidential informers play a vital role in law enforcement. The near absolute privilege attached to the identity of these individuals is premised on the duty of all citizens to aid in enforcing the law and is meant to protect them against retribution from those involved in crime and to encourage continued information sharing.

Confidential informer privilege applies to those who provide information about a crime to the police, or otherwise assist the police, on the understanding that their identities will not be revealed. In order for the privilege to apply, there must be an explicit or implicit offer of confidentiality.

Informer privilege

Prosecutors have a duty to protect the identity of confidential informers. Once informer privilege is found to exist the Prosecutor, police and Court are duty bound to protect the privilege.

Where the privilege applies, Prosecutors must ensure that no disclosure occurs of any information that might tend to reveal the identity of an informer, or their status as an informer. This obligation continues throughout every stage of the proceedings including the questioning of witnesses. In light of the serious consequences that could arise from a breach of this privilege, Prosecutors must alert their Crown Attorney to the existence of any case involving a confidential informer at the earliest opportunity.

Any issues regarding confidential informer privilege should be considered at the earliest possible stages in a prosecution.


The privilege belongs jointly to the prosecution and the confidential informer. Neither can waive it without the consent of the other. Waiver is only valid where the informer has clearly and unequivocally waived the procedural safeguards associated with the privilege and is doing so with full knowledge of the rights that the privilege is designed to protect and of the effect, the waiver will have on those rights.

Waiver of an informer’s privilege will only apply to the particular case and should never be assumed to mean an informer has waived any claims to privilege in past or future cases.

Disclosure obligations

A Prosecutor must not disclose any information that might tend to identify a confidential informer. It is the responsibility of the Prosecutor, together with the police, to comprehensively review and vet all disclosure materials.

Once it is determined that a case involves a confidential informer, that case must be brought to the attention of the Crown Attorney or designate for immediate assignment. The assigned Prosecutor is responsible for determining what material can be disclosed. No information that may tend to reveal the identity of the informer nor implicitly reveal their identity may be disclosed.

No disclosure in a criminal file involving an informer should be provided until the Prosecutor has been able to review and vet the entire file. Where possible, this should be done with the assistance of a confidential informer’s assigned handler to ensure that no information is disclosed that may tend to identify a confidential informer.

The privilege continues to apply even if the informer’s identity becomes known through notoriety or inadvertent disclosure.

Inadvertent disclosure

The Prosecutor must immediately inform the relevant police agency of any breach or potential breach of informer privilege so that appropriate steps can be taken.

In these circumstances, the Prosecutor must immediately notify her Crown Attorney of the breach. The Prosecutor must contact defence counsel, request the information be returned, along with any copies produced, and request that the information not be disclosed to any other person, including their client. The Prosecutor may be required to bring an application before the court for an order compelling the defence counsel to return the materials sought.

Innocence at stake exception

The privilege that is attached to a confidential informer’s identity may give way when an accused person’s innocence is at stake. “Innocence at stake” is the only justification to pierce informer privilege.

Confidential information protected by privilege may be disclosed by court order where an accused person establishes that their innocence is at stake. A claim of innocence at stake cannot be speculative and shall be supported by evidence. The application to establish innocence at stake is generally made at the close of the Crown’s case.

If the judge determines that the evidence establishes that innocence is at stake, then the judge will order production of information only to the extent necessary.

If an order is granted requiring disclosure of confidential information that may tend to reveal the identity of an informer, a Prosecutor must inform her Crown Attorney of the ruling.

The Prosecutor must not reveal information that may tend to disclose the identity of an informer who has not waived the privilege, even where the exception is found to apply. If an order is made that innocence is at stake and the informer does not waive the privilege, the Prosecutor must reassess reasonable prospect of conviction and determine whether the prosecution can continue. The Prosecutor may also request an appeal of the judge’s ruling under the Canada Evidence Act.