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Issues in CI Litigation: Balancing Informant Privilege with the Right to Full Answer and Defence

18 Pages Posted: 2 May 2017 Last revised: 6 May 2017

Chris De Sa

Public Prosecution Service of Canada

Hafeez S Amarshi

Public Prosecution Service of Canada

Date Written: February 11, 2017

Abstract

A large number of search warrants in serious criminal cases rely on information derived from confidential informants. The court and the Crown have an obligation to protect the identity of the informant. This task has to be carefully balanced with the corresponding right to full answer and defence. Courts must be prepared to adopt a flexible approach to disclosure. Two tools have recently emerged in the caselaw that seek to strike this balance – the drafting of judicial summaries and exparte in camera proceedings. This paper further discusses current issues in informant litigation including the relevant distinctions between an agent and informant and defence efforts at piercing the privilege when innocence is at stake or fabrication of the informant is alleged.

Keywords: Search Warrant(s), Confidential Informant Privilege, Full Answer and Defence, Step 6 Garofoli, Section 37, Judicial Summary, Crown Summary, In Camera Hearing, Basic Hearing, Agent, Innocence at Stake, Fabrication

JEL Classification: K14

Suggested Citation

De Sa, Chris and Amarshi, Hafeez S, Issues in CI Litigation: Balancing Informant Privilege with the Right to Full Answer and Defence (February 11, 2017). Available at SSRN: https://ssrn.com/abstract=2960929

Chris De Sa

Public Prosecution Service of Canada ( email )

130 King St W, Suite 3400, Box 36
Toronto, Ontario M5X 1K6
Canada

HOME PAGE: http://www.ppsc-sppc.gc.ca/eng/

Hafeez Amarshi (Contact Author)

Public Prosecution Service of Canada ( email )

130 King St W, Suite 3400, Box 36
Toronto, Ontario M5X 1K6
Canada

HOME PAGE: http://www.ppsc-sppc.gc.ca/eng/

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