By: Lisa A. Silver
PDF Version: The Confidential Informant as a Creation of Law
Case Commented On: Her Majesty The Queen v Named Person A, 2017 ABQB 552 (CanLII)
We are all conversant with a creation story, be it biblical or cultural. We are less apt, however, to recite a purely legal creation story, where the law is not in itself created but creates. In the decision of Her Majesty The Queen v Named Person A, Madam Justice Antonio applies the law and in doing so creates a legally constructed status, as confidential informant, for Named Person A (NPA). The effect of the law or the privilege that arises, requires that NPA’s identity be strictly protected and non-disclosable, subject to the “innocence at stake” exception. This is a status which NPA neither wanted nor asked for. Once NPA became this pronounced creation of law, NPA became nameless. The discussion we will undertake will provide us with the ultimate creation story of how certain encounters can transform a person into a creation of law. With that transformation, comes the full force of the law as legal principles must be and are rigidly applied. The preliminary issue of whether NPA was, in law, a confidential informant is incredibly important. If NPA is not such an informant then the issues flowing from this status are moot. If, however, NPA is a confidential informant, then the court must decide how the Crown can fulfill its Stinchcombe obligations requiring full disclosure of NPA’s criminal file to NPA’s counsel without violating the sacrosanct confidential informant privilege. To disclose or even to edit the disclosure would reveal NPA’s identity. To not disclose would run afoul of NPA’s right to full answer and defence. Alternatively, if NPA’s defence counsel is within NPA’s confidential “circle of privilege”, then disclosure may be made within the safety of that legal privilege. This post considers the initial decision by Justice Antonio to find that, in law, NPA is a confidential informant. It is this finding which engages the law and which matters most to NPA.
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