Features Case Law Opinion
The high cost of breaching informer privilege

In Nissen v. Durham Regional Police Services Board, 2017 ONCA 10, the plaintiff, Ms. Stack, lived with her husband Mr. Nissen and their two children. She learned from a neighbour that the teenage son of another neighbour had broken into a home, stolen guns, and (with his brother) took the guns to school and threatened students. Ms. Stack said she decided to tell the police but she did not want her name associated with any investigation. She claimed she subsequently spoke to a police officer over the phone and insisted she not be identified and that she was afraid of the teenage neighbour and his brother. She asserted the officer promised her that her identity would not be disclosed and, if she came to the police station to discuss the matter, her identity would be kept secret and that she would remain totally anonymous.

At the police station, unbeknownst to Ms. Stack, her police interview was recorded on videotape. Within a few days of her interview, the boys were arrested, and her identity and her videotaped interview were included in the Crown’s disclosure package. This disclosure provoked an angry reaction from the boys’ parents. Their father drove his truck at Ms. Stack causing her to leap from the sidewalk and then further threatening and harassing conduct occurred against Ms. Stack and her family. This on-going harassment became unbearable and ultimately, Ms. Stack and her family decided to sell their home and move to another community. Ms. Stack and Mr. Nissen sued the police and several named officers for breaching informer privilege.

At trial in the Ontario Superior Court of Justice, the judge concluded that the police officer had promised Ms. Stack anonymity and confidentiality despite the denials by police that such confidentiality was promised or that she enjoyed the status of confidential informer. “On a balance of probabilities, I hold that [the officer] promised Ms. Stack that her identity would be preserved, and not disclosed, if she came to the police station and provided information about suspected criminal activity,” said the judge. “He did not qualify that promise in any way. Thus, both expressly and by implication Ms. Stack became entitled to informer privilege, that is, she was entitled to have her anonymity preserved with respect to her involvement in conveying information to the police.” The judge found the police owed a common law duty not to disclose the identity of an informer and they had not taken reasonable care in this case.

The judge then went on to award Ms. Stack $345,000 in general damages for emotional and psychological injury. Ms. Stack had complained of feeling hopeless and depressed following these events, and she had been diagnosed with post-traumatic stress disorder. Her family, friends and a psychiatrist had testified about the significant change in her behaviour and enjoyment of her life. The judge also awarded $65,000 in Family Law Act damages for loss of guidance, care and companionship to Mr. Nissen, and $25,000 to each child.

The police (defendants) appealed to Ontario’s highest court contending, in part, that the trial judge erred in finding that Ms. Stack was promised confidentiality and in finding that she had established the necessary elements for such a claim.

Promise of Confidentiality

The police argued that the officer would not have asked Ms. Stack to come to the police station for an interview if she was being treated as a confidential informer. This submission, however, was rejected. The trial judge’s finding that the officer promised Ms. Stack confidentiality and anonymity was based on a thorough review of the evidence and was supported, among other evidence, by the conversation between the officer and Ms. Stack at the conclusion of the videotaped statement. Even though the officer never used the term “confidential informer”, when Ms. Stack asked the officer not to let anyone know about their conversation he said, “[T]his 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.”

Elements of Damage Claim

The police opined that not only did the plaintiff need to prove a promise of confidentiality in exchange for information, but that they also needed to establish that the information provided was difficult or impossible to obtain, and the informer was likely to suffer harm or danger if their identity were disclosed. However, Justice Sharpe, speaking for the Court of Appeal, determined that the required elements for a claim of damages against the police for breach of a promise of confidentiality made to a citizen reporting criminal wrongdoing was the same as the civil law action for breach of confidence. He refused to add the additional elements as suggested by the police to the requirements for establishing a civil claim for damages. In this case, the officer made a promise of confidentiality and anonymity to Ms. Stack in exchange for the information she provided, that promise was breached and Ms. Stack suffered damages as a result. Sharpe wrote:

While other considerations may come into play in a criminal case where the prosecution is resisting disclosure of the identity of a confidential informer to an accused, this is a civil case between the police and an individual who was promised confidentiality. That promise gave rise to a common law and equitable right entitling Ms. Stack to have her identity kept confidential. Her right was not contingent upon other ways the Police may have had to get the information she provided, or on what the Police thought about the danger she faced. [para. 33]

In terms of police offering a promise of confidentiality, the Court of Appeal stated:

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. If the police tell the witness that they will not reveal his or her identity or involvement in order to get information, they should keep their promise, or face the ordinary consequences of violating the assurance they have given. If the police decide that the witness does not deserve or warrant the requested assurance of confidentiality and anonymity, they should clearly say so and refuse to give the witness the requested assurance. That would allow the witness to decide whether to nonetheless give the information and accept the risk of disclosure. Simply put, a citizen in Ms. Stack’s situation should be able to rely upon what the police tell her. [para. 35]

The defendants’ appeal was dismissed and the award of damages was upheld.

Mike Novakowski is Blue Line’s case law columnist. He can be contacted at: caselaw@blueline.ca.