On January 9, 2017, in Nissen v. Durham Regional Police Services Board (“Nissen”) the Ontario Court of Appeal (“ONCA”) found the Durham Regional Police Services Board liable for $460,000.00 in damages for breaching informant privilege. In Nissen the ONCA examined what the required elements are for a claim for damages against police for breach of a promise of confidentiality made to a citizen reporting criminal wrongdoing.
Informant privilege is typically associated with criminal law and not civil liability as it is in Nissen, which makes that case noteworthy. In criminal law, when an accused requests disclosure from the Crown, information that identifies a confidential informant will only be disclosed where it is necessary to prove innocence, commonly referred to as the innocence-at-stake exception. When a police services board or Crown breach confidentiality that has been promised to an informant, however, the police services board or Crown, as the case may be, can be held civilly liable for damages, as Nissen makes clear.
While living on a quiet street in Whitby, Ontario, Ms. Stack—a wife and mother of three—acquired certain knowledge of criminal acts of her neighbour’s children; namely, that one son, P.E., broke into another neighbour’s house, stole guns, and, along with his brother S.E., took them to school threatening other students. Ms. Stack felt compelled to inform the police, but feared retaliation for doing so. Nevertheless, in an attempt to get the police involved while still remaining anonymous, Ms. Stack had a friend call the police station to inform authorities anonymously of her knowledge. Sometime later, however, Ms. Stack received a phone call from Officer Liepsig, requesting more information. Although frustrated that her friend disclosed her identity, Ms. Stack reluctantly agreed to attend the station for an interview, so long as her identity would never become public.
At trial, Ms. Stack testified that Officer Liepsig provided several assurances that he would keep her identity secret, but never specifically used the term “confidential informer”. Although Officer Liepsig did ask Ms. Stack if it was okay if he took notes during the interview, to which she agreed, he failed to inform her that he was video recording the interview the entire time. What’s more, in the face of Liepsig’s testimony that he at no point provided assurances to Ms. Stack regarding confidentiality, the video clearly showed the officer state: “This is between you and I. Of course, I have to keep records of this for ourselves… That stuff does not get disclosed. It is not made available to the public. You don’t have to worry about that.”
Shortly after Ms. Stack provided this interview, the two sons, P.E. and S.E., were arrested, and the video of Ms. Stack’s interview was provided to Defence Counsel as part of the Crown’s disclosure. Officer Liepsig testified that he did not see the disclosure that was furnished to the accused boys, nor did he inform other officers or the Crown attorneys that he had made a promise of confidentiality to Ms. Stack. In the weeks following, the parents of P.E. and S.E. engaged in what could only be described as a campaign of harassment and abuse directed at Ms. Stack and her husband, Mr. Nissen, including nearly hitting Ms. Stack with their truck while she was walking on the side walk and threateningly glaring into their home through the front room window.
As a result, Ms. Stack suffered from feelings of hopelessness, depression, and a diagnosis of post-traumatic stress disorder. Eventually, she and her family were forced to sell their home and move.
What is clear from the analysis of Justice Sharpe of the Ontario Court of Appeal is that the legal determination of an informant’s status is a matter of substance as to the promises made: if an officer makes a promise of confidentiality and anonymity to a member of the public, in exchange for information, that individual is owed a duty of care with respect to his or her confidentiality, and if a breach is subsequently alleged, the case then “falls squarely within the long-recognized cause of action for breach of confidence.”
Accordingly, it is not necessary to specifically refer to the informant as a “confidential informant” for the privilege to attach, nor is it satisfactory to simply follow or not to follow any police board guidelines for dealing with informants. Furthermore, when an informant is furnished with the privilege of confidentiality by way of a promise, a breach of that promise will attract liability for the damage suffered as a result. In the case of Nissen, that liability cost the Durham Regional Police Services Board $460,000.00 plus legal costs.
Justice Sharpe’s succinct summary at paragraph 35 of the decision, provides instructive guidance:
It is, of course, for the police to decide whether or not to make a promise of confidentiality. In making that decision, they will no doubt make an assessment of the value of the information the witness may have to offer, whether they can get the information through other means, and the danger the witness may face if his or her identity is revealed.
Going forward, Police Service Boards must ensure police officers who make any reasonably clear commitment to keeping an informant’s identity confidential in a civil matter do so. Not doing so risks liability for damages suffered by the informant from the consequences of wrongful disclosure.
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