Who's behind the initials? Why confidential informants are a challenge for the defence

When Erin Breen heard there were possible issues with an informant used by the Royal Newfoundland Constabulary, she wanted to know more.

As a defence lawyer, Breen regularly comes across cases that involve confidential police sources. That was the case in Operation Baffle, a conspiracy drug case for which her client, Charlie Noftall, was implicated in 2013.

"The police have all of the information on who these people are and who they're dealing with. We know nothing," said Breen, a St. John's based lawyer. 

"We're basically told Source A, Source B, Source C. We just have to trust in the fact that yes, this is what they said and we can rely on their information."

In the days before Noftall's trial was set to begin in January 2016, CBC News reported that the Serious Incident Response Team (SIRT) from Nova Scotia was called in to investigate how certain RNC officers handled a confidential informant.

That revelation, though scarce in detail, prompted Breen to file an application to get details of the investigation and whether any of the informants involved Operation Baffle were the same as the informant at the centre of the SIRT investigation. 

That application, however, was denied a year later. It wasn't a surprise to Breen. 

'Bedrock of their investigation'

The Supreme Court of Canada has continuously upheld that any information that would potentially identify a confidential informant has to be protected by the courts, the Crown and the police.

Informer privilege exists for two reason: the safety of the informant and their families, and the fact that having easy access to an informant's identity would hinder others from coming forward to police with information.

"It's difficult and it's frustrating as a defence lawyer because you want to get as much information you are entitled to for your client to help defend them, at the same time recognizing that, yeah, this is a legitimate concern," Breen said.

"The Supreme Court of Canada has set out the limits on this and the threshold for us to obtain any information or disclosure is very, very high, and often times impossible for us to achieve."

Breen said confidential informants are often the building blocks of complex drug cases, and as such, the defence puts a great deal of trust into the police, the Crown and the courts that what the informant tells them is truthful. 

"I don't think I'm exaggerating to say that every drug case, or almost every drug case — particularly large-scale conspiracy cases — are built on the formation of confidential informants," she said.

"Without their information, I don't think police could get to the point of obtaining search warrants, judicial authorization to continue their investigations to do their surveillance. They really do rely on this information as the bedrock of their investigation."

Informers vetted, police say

In 2017, the independent investigation into the actions of senior RNC officers' handling of a confidential informant ruled there were no grounds for criminal charges.

It did, however, reaffirm the justice minister's stance on the need for independent civilian oversight of police in Newfoundland and Labrador.

CBC asked the RNC and RCMP about what the forces do to ensure an informant is being truthful.

"The police receive information from a host of sources such as witnesses, informers, police observations, and the public to name a few," an RCMP spokesperson said in an email.

"Police use the same techniques to corroborate information received from informers as that received in any other manner."

The RCMP said it does pay informants but the amount depends on a number of factors, including the type of information and the type of case. 

For its part, the RNC said officers are trained in how to handle informants.

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