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Tom Rees | Criminal Defence Lawyer Winnipeg

Manitoba Court of Appeal comments on production of police notes in confidential informant cases

[14]        I do not accept that the notes would not be producible, at least in some form, on the basis of the rule of informer privilege.  Crown counsel acknowledges that the privilege protects only information tending to identify the informer – which the accused does not seek.  As such, any other information is producible.  Although it is unknown exactly what was in the notes, I do not expect that all of the information they contained would have identified the informant and, hence, been subject to privilege.  Indeed, according to Lysyk, all of the information in the notes is in the ITO – and the ITO has been produced, albeit with editing to protect the identity of the informant.  This approach is consistent with the authorities.  In cases where notes evidencing discussions with confidential informants have been lost or destroyed, the courts have proceeded on the basis that, if available, they would have been subject to production, subject only to editing to protect the identity of an informant (R. v. Barzal, 1993 CanLII 867 (BC CA), [1993] B.C.J. No. 1812 (QL), 33 B.C.A.C. 161 (C.A.), R. v. Forster,2005 SKCA 107 (CanLII), [2005] S.J. No. 529 (QL)).


R. v. Kuzyk, 2014 MBQB 158