FPT HEADS OF PROSECUTIONS COMMITTEE
REPORT OF THE WORKING GROUP ON THE PREVENTION OF MISCARRIAGES OF JUSTICE

7. IN-CUSTODY INFORMERS


7. IN-CUSTODY INFORMERS

I. INTRODUCTION

Jailhouse or in-custody informers are inmates who approach police with incriminating information about an accused, usually an alleged confession, obtained when they were in custody together. Often, the informer has shared a cell or neighbouring cell with the accused. For the purposes of this paper, an “in-custody informer” is defined as someone who: (a) allegedly receives one or more statements from an accused, (b) while both are in custody, (c) where the statements relate to offences that occurred outside of the custodial institution. The term is not meant to include a person who is intentionally placed in proximity to the accused, by the authorities, for the specific purpose of acquiring evidence and does not include a confidential informer who provides information that is used solely for the purpose of furthering a police investigation (i.e. will not be used as evidence in court).

The improper use of false evidence of in-custody informers has been a contributing factor in several high-profile wrongful convictions, both in Canada and elsewhere. The New York-based Innocence Project has found that the prosecution had used in-custody informer evidence in 21 (16.15 per cent) of the first 130 exonerations based on new DNA evidence. Inquiries in other jurisdictions have analyzed the use of in-custody informers and instigated both legislative and policy reform.[181] The use of in-custody informers was also a key area of review in both the Morin and Sophonow Inquiries.

In the Morin case, the prosecution relied on the evidence of two jailhouse informers, who claimed to have overheard a confession made by Morin while all three were inmates in jail. One of the informers shared a cell with Morin while the second occupied the cell next to his. After an exhaustive review, Justice Kaufman determined that the informers were “totally unreliable witnesses” and should not have been called:[182]

They were predisposed, by character and psychological makeup, to lie…Since these witnesses were motivated by self interest and unconstrained by morality, they were as likely to lie as to tell the truth, depending on where their perceived self-interest lay. Their claim that Guy Paul Morin confessed…was easy to make and virtually impossible to disprove. These facts, taken together, were a ready recipe for disaster.

Justice Kaufman noted that a number of miscarriages of justice throughout the world were likely explained, at least in part, by the “false, self-serving evidence” given by such informers:[183]

In-custody informers are almost invariably motivated by self-interest. They often have little or no respect for the truth or their testimonial oath or affirmation. Accordingly, they may lie or tell the truth, depending only upon where their perceived self-interest lies. In-custody confessions are often easy to allege and difficult, if not impossible, to disprove.

Still, Justice Kaufman noted that no jurisdiction in the world has banned outright the use of such witnesses and observed that any prohibition of their evidence “runs against the grain of Canadian jurisprudence and is unlikely to acquire legislative or judicial acceptance.” Instead, he recommended a series of stringent guidelines that preserve but limit the discretion of the prosecution to adduce in-custody informer evidence.

In the Sophonow Inquiry, Justice Cory was even more critical of in-custody informers. Three in-custody informers testified against Sophonow, including a man who has testified in at least nine cases in Canada. Justice Cory noted that the informer “seems to have heard more confessions than many dedicated priests.” In fact, before Sophonow’s third trial, no less than 11 informers had volunteered their services.

Justice Cory said there was “nothing untoward” about the use of such informers in the 1980s and Winnipeg police attempted to investigate the informers and determine their reliability. But it does demonstrate “the ease with which experienced officers and Crown counsel” can be fooled by such witnesses. The real problem, Justice Cory noted, was the failure of the Crown to disclose important information about the informers to the defence and this “contributed significantly” to Sophonow’s wrongful conviction.

Justice Cory was scathing in his description of this category of witnesses:

Jailhouse informers comprise the most deceitful and deceptive group of witnesses known to frequent the courts. The more notorious the case, the greater the number of prospective informers. They rush to testify like vultures to rotting flesh or sharks to blood. They are smooth and convincing liars. Whether they seek favours from the authorities, attention or notoriety they are in every instance completely unreliable. It will be seen how frequently they have been a major factor in the conviction of innocent people and how much they tend to corrupt the administration of justice. Usually, their presence as witnesses signals the end of any hope of providing a fair trial.

They must be recognized as a very great danger to our trial system. Steps must be taken to rid the courts of this cancerous corruption of the administration of justice. Perhaps, the greatest danger flows from their ability to testify falsely in a remarkably convincing manner… Jailhouse informers are a festering sore. They constitute a malignant infection that renders a fair trial impossible. They should, as far as it is possible, be excised and removed from our trial process.

He summarized the findings about such witnesses as follows:

  1. Jailhouse informers are polished and convincing liars.
  2. All confessions of an accused will be given great weight by jurors.
  3. Jurors will give the same weight to "confessions" made to jailhouse informers as they will to a confession made to a police officer.
  4. "Confessions" made to jailhouse informers have a cumulative effect and, thus, the evidence of three jailhouse informers will have a greater impact on a jury than the evidence of one.
  5. Jailhouse informers rush to testify particularly in high profile cases;
  6. They always appear to have evidence that could only come from one who committed the offence.
  7. Their mendacity and ability to convince those who hear them of their veracity make them a threat to the principle of a fair trial and, thus, to the administration of justice.

Justice Cory noted Justice Kaufman’s recommendations but went further and said:

By now it must be clear that jailhouse informers are so unreliable that they tend to undermine criminal trials… Their testimony has all too often resulted in a wrongful conviction… How many wrongful convictions must there be before the use of these informers is forbidden or, at least, confined to very rare cases.

His specific recommendations are detailed in the next section.

II. CANADIAN COMMISSIONS OF INQUIRY

a) Commission on Proceedings Involving Guy Paul Morin

Recommendation 36 - Ministry guidelines for limited use of informers

In the face of serious concerns about the inherent unreliability of in-custody informers, the decision whether to tender their evidence should be regulated by Ministry guidelines. The Ministry of the Attorney General should substantially revise its existing guidelines, in accordance with the specific recommendations below, to significantly limit the use of in-custody informers to further a criminal prosecution.

Recommendation 37 - Crown policy clearly articulating informer dangers

The current Crown policy does not adequately articulate the dangers associated with the reception of in-custody informer evidence. Further, the statement that such witnesses “may seek, and in rare cases, will receive, some benefit for their participation in the Crown’s case” does not conform to the extensive evidence before me. The Crown policy should reflect that such evidence has resulted in miscarriages of justice in the past or been shown to be untruthful. Most such informers wish to benefit for their contemplated participation as witnesses for the prosecution. By definition, in-custody informers are detained by authorities, either awaiting trial or serving a sentence of imprisonment. The danger of an unscrupulous witness manufacturing evidence for personal benefit is a significant one.

Recommendation 38 - Limitations upon Crown discretion in the public Interest

The current Crown policy provides that the use of an in-custody informer as a witness should only be considered in cases in which there is a compelling public interest in the presentation of their evidence. This would include the prosecution of serious offences. Further, it is unlikely to be in the public interest to initiate or continue a prosecution based only on the unconfirmed evidence of an in-custody informer. The policy should, instead, reflect that (a) the seriousness of the offence, while relevant, will not, standing alone, demonstrate a compelling public interest in the presentation of their evidence. Indeed, in some circumstances, the seriousness of the offence may militate against the use of their evidence; (b) it will never be in the public interest to initiate or continue a prosecution based only upon the unconfirmed evidence of an in-custody informer.

Recommendation 39 - Confirmation of in-custody informer evidence defined

The current Crown policy notes that confirmation, in the context of an in-custody informer, is not the same as corroboration. Confirmation is defined as evidence or information available to the Crown which contradicts a suggestion that the inculpatory aspects of the proposed evidence of the informer was fabricated. This definition does not entirely meet the concerns that prompt the need for confirmation. Confirmation should be defined as credible evidence or information, available to the Crown, independent of the in-custody informer, which significantly supports the position that the inculpatory aspects of the proposed evidence were not fabricated. One in-custody informer does not provide confirmation for another.

Recommendation 40 - Approval of supervising Crown counsel for informer use

The current Crown policy provides that, if the Crown’s case is based exclusively, or principally, on evidence of an in-custody informer, the prosecutor must bring the case to the attention of their supervising Director of Crown Operations as soon as practicable and the Director’s approval must be obtained before taking the case to trial. The policy should, instead, reflect that, if the prosecutor determines that the prosecution case may rely, in part, on in-custody informer evidence, the prosecutor must bring the case to the attention of their supervising Director of Crown Operations as soon as practicable and the Director’s approval must be obtained before taking the case to trial. The Ministry of the Attorney General should also consider the feasibility of establishing an In-Custody Informer Committee (composed of senior prosecutors from across the province) to approve the use of in-custody informers and to advise prosecutors on issues relating to such informers, such as means to assess their reliability or unreliability, and the appropriateness of contemplated benefits for such informers.

Recommendation 41 - Matters to be considered in assessing informer Reliability

The current Crown policy lists matters which Crown counsel may take into account in assessing the reliability of an in-custody informer. Those matters do not adequately address the assessment of reliability and place undue reliance upon matters which do little to enhance the reliability of an informer’s claim. The Crown policy should be amended to reflect that the prosecutor, the supervisor or any Committee constituted should consider the following elements:

  1. The extent to which the statement is confirmed in the sense earlier defined;
  2. The specificity of the alleged statement. For example, a claim that the accused said “I killed A.B.” is easy to make but extremely difficult for any accused to disprove;
  3. The extent to which the statement contains details or leads to the discovery of evidence known only to the perpetrator;
  4. The extent to which the statement contains details which could reasonably be accessed by the in-custody informer, other than through inculpatory statements by the accused. This consideration need involve an assessment of the information reasonably accessible to the in-custody informer, through media reports, availability of the accused’s Crown brief in jail, etc. Crown counsel should be mindful that, historically, some informers have shown great ingenuity in securing information thought to be unaccessible to them. Furthermore, some informers have converted details communicated by the accused in the context of an exculpatory statement into details which purport to prove the making of an inculpatory statement;
  5. The informer’s general character, which may be evidenced by his or her criminal record or other disreputable or dishonest conduct known to the authorities;
  6. Any request the informer has made for benefits or special treatment (whether or not agreed to) and any promises which may have been made (or discussed with the informer) by a person in authority in connection with the provision of the statement or an agreement to testify;
  7. Whether the informer has, in the past, given reliable information to the authorities;
  8. Whether the informer has previously claimed to have received statements while in custody. This may be relevant not only to the informer’s reliability or unreliability but, more generally, to the issue whether the public interest would be served by utilizing a recidivist informer who previously traded information for benefits;
  9. Whether the informer has previously testified in any court proceeding, whether as a witness for the prosecution or the defence or on his or her behalf, and any findings in relation to the accuracy and reliability of that evidence, if known;
  10. Whether the informer made some written or other record of the words allegedly spoken by the accused and, if so, whether the record was made contemporaneous to the alleged statement of the accused;
  11. The circumstances under which the informer’s report of the alleged statement was taken (e.g. report made immediately after the statement was made, report made to more than one officer, etc.);
  12. The manner in which the report of the statement was taken by the police (e.g. through use of non-leading questions, thorough report of words spoken by the accused, thorough investigation of circumstances which might suggest opportunity or lack of opportunity to fabricate a statement). Police should be encouraged to address all of the matters relating to the Crown’s assessment of reliability with the informer at the earliest opportunity. Police should also be encouraged to take an informer’s report of an alleged in-custody statement under oath, recorded on audio or videotape, in accordance with the guidelines set down in R. v. K.G.B. However, in considering items 10 to 12, Crown counsel should be mindful that an accurate, appropriate and timely interview by police of the informer may not adequately address the dangers associated with this kind of evidence;
  13. Any other known evidence that may attest to or diminish the credibility of the informer, including the presence or absence of any relationship between the accused and the informer;
  14. Any relevant information contained in any available registry of informers.
Recommendation 42 - Limited role of Crown counsel conferring benefits

Crown counsel involved in negotiating potential benefits to be conferred on an in-custody informer should generally not be counsel ultimately expected to tender the evidence of the informer. This recommendation supports the current Crown policy in Ontario.

Recommendation 43 - Agreements with informers reduced to writing

The Ministry of the Attorney General should amend its Crown Policy Manual to impose a positive obligation upon prosecutors to ensure that any agreements made with in-custody informers relating to benefits or consideration for co-operation should, absent exceptional circumstances, be reduced to writing and signed by a prosecutor, the informer and his or her counsel (if represented). An oral agreement, fully reproduced on videotape, may substitute for such written agreement. As well, in accordance with present Crown policy, any such agreements respecting benefits or consideration for co-operation should be approved by a Director of Crown Operations.

Recommendation 44 - Restrictions upon benefits promised or conferred
  1. An agreement with an in-custody informer should provide that the informer should expect no benefits to be conferred which have not been previously agreed to and, specifically, that the informer should expect no additional benefits in relation to future or, as of yet, undiscovered criminality. Indeed, such criminality may disentitle the in-custody informer to any benefits previously agreed to but not yet conferred.
  2. Where the in-custody informer subsequently seeks additional benefits nonetheless (particularly in connection with additional criminal charges which he or she faces or may face) prior to the completion of any testimony he or she may give, Crown counsel (and, where practicable, any supervisor or Committee constituted) should re-assess the use of the in-custody informer as a witness in accordance with the criteria set out in the Crown Policy Manual.
  3. Where additional benefits (that is, benefits not previously agreed to or necessarily incidental to a prior agreement) are sought by the in-custody informer subsequent to his or her completed testimony (particularly in connection with additional criminal charges which he or she faces or may face), they should not be conferred by Crown counsel. Indeed, Crown counsel should advise the Court addressing any additional criminal charges that the informer was made aware that he or she could not expect additional benefits in relation to future or, as of yet, undiscovered criminality when the earlier agreement was reached, and that the informer is not entitled to any credit from the court for past co-operation.
  4. The commission of additional crimes should generally disqualify the witness from future use by the prosecution as a jailhouse informer in other cases.
Recommendation 45 - Conditional benefits

Any agreement respecting benefits should not be conditional upon a conviction. The Ministry of the Attorney General should establish a policy respecting other conditional or contingent benefits.

Recommendation 46 - Policy on kinds of benefits conferred

The Ministry of the Attorney General should establish a policy which sets limitations on the kinds of benefits that may be conferred on jailhouse in-custody informers or appropriate preconditions to their conferral.

Recommendation 47 - Disclosure respecting in-custody informers

The current Crown policy reflects that the dangers of using in-custody informers in a prosecution give rise to a heavy onus on Crown counsel to make complete disclosure. Without limiting the extent of that onus, the policy lists disclosure items that should be reviewed to ensure full and fair disclosure. The disclosure policy is generally commendable. Some fine-tuning of the items listed is required to give effect to the onus to make complete disclosure. The items should read, in the least:

  1. The criminal record of the in-custody informer including, where accessible to the police or Crown, the synopses relating to any convictions.
  2. Any information in the prosecutors’ possession or control respecting the circumstances in which the informer may have previously testified for the Crown as an informer, including, at a minimum, the date, location and court where the previous testimony was given. (The police, in taking the informer’s statement, should inquire into any prior experiences testifying for either the provincial or federal Crown as an informer or as a witness generally.)
  3. Any offers or promises made by police, corrections authorities, Crown counsel, or a witness protection program to the informer or person associated with the informer in consideration for the information in the present case.
  4. Any benefit given to the informer, members of the informer’s family or any other person associated with the informer, or any benefits sought by such persons, as consideration for their co-operation with authorities, including but not limited to those kinds of benefits already listed in the Crown Policy Manual.
  5. As noted earlier, any arrangements providing for a benefit (as set out above) should, absent exceptional circumstances, be reduced to writing and signed and/or be recorded on videotape. Such arrangements should be approved by a Director of Crown Operations or the In-Custody Informer Committee and disclosed to the defence prior to receiving the testimony of the witness (or earlier, in accordance with Stinchcombe).
  6. Copies of the notes of all police officers, corrections authorities or Crown counsel who made, or were present during, any promises of benefits to, any negotiations respecting benefits with, or any benefits sought by, an in-custody informer. There may be additional notes of officers or corrections authorities which may also be relevant to the in-custody informer’s testimony at trial.
  7. The circumstances under which the in-custody informer and his or her information came to the attention of the authorities.
  8. If the informer will not be called as a Crown witness, a disclosure obligation still exists, subject to the informer’s privilege.
Recommendation 48 - Post-conviction disclosure by Crown counsel

The Ministry of the Attorney General should remind Crown counsel of the positive and continuing obligation upon prosecutors to disclose potentially exculpatory material to the defence post-conviction, whether or not an appeal is pending. Such material should also be provided to the Crown Law Office.

Recommendation 49 - Post-conviction continuing disclosure by police

The Durham Regional Police Service should amend its operational manual to impose a positive and continuing obligation upon its officers to disclose potentially exculpatory material to the Durham Crown Attorney’s Office, or directly to the Crown Law Office, post-conviction, whether or not an appeal is pending. The Ministry of the Solicitor General should facilitate the creation of a similar positive obligation upon all Ontario police forces.

Recommendation 50 - Access to confidential informer records

A Joint Committee on Disclosure Issues should consider potential policy changes to effect broader access by police, prosecutors and defence counsel to confidential records potentially relevant to the reliability of an in-custody informer.

Recommendation 51 - Prosecution of informer for false statements

Where an in-custody informer has lied either to the authorities or to the Court, Crown counsel should support the prosecution of that informer, where there is a reasonable prospect of conviction, to the appropriate extent of the law, even if his or her false claims were not to be tendered in a criminal proceeding. The prosecution of informers who attempt (even unsuccessfully) to falsely implicate an accused is, of course, intended, amongst other things, to deter like-minded members of the prison population. This policy should be reflected in the Crown Policy Manual.

Recommendation 52 - Extension of Crown policy to analogous persons

The current Crown policy defines “in-custody informer” to address one type of in-custody witness whose evidence is particularly problematic. However, the policy does not address similar categories of witnesses who raise similar, but not identical, concerns. For example, a person facing charges, or a person in custody who claims to have observed relevant events or heard an accused confess while both were out of custody, may be no less motivated than an in-custody informer to falsely implicate an accused in return for benefits. The Crown Policy Manual should, therefore, be amended to reflect that Crown counsel should be mindful of the concerns which motivate the policy respecting in-custody informers, to the extent applicable to other categories of witnesses, in the exercise of prosecutorial discretion generally.

Recommendation 53 - Revisions to police protocols respecting informers

The Durham Regional Police Service should revise Operations Directive 04-17 to specifically address in-custody informers as a special class of informers. This directive should reinforce the inherent risks associated with such informers, the need for special precautions in dealing with them and establish special protocols for such dealings. These protocols should also address the method by which an informer’s reliability should be investigated. The Ministry of the Solicitor General should facilitate the creation of a similar directive for all Ontario police forces.

Recommendation 54 - Creation of informer registry

The Ministry of the Attorney General should establish an in-custody informer registry, designed to make available to prosecutors, defence counsel and police, information concerning the prior testimonial involvement of in-custody informers, any benefits requested, benefits agreed to or conferred, and any prior assessment of reliability made by police, prosecutors or the Court of an informer.

Recommendation 55 - Crown contribution to informer registry

The Ministry of the Attorney General should amend the Crown Policy Manual to impose a positive obligation upon prosecutors to provide relevant information to the registry and to ensure disclosure to the defence of relevant information contained in the registry.

Recommendation 56 - Police contribution to informer registry

The Durham Regional Police Service should amend its operational manual to impose a positive obligation upon its officers to provide relevant information to the registry. The Ministry of the Solicitor General should facilitate the creation of a similar positive obligation upon all Ontario police forces.

Recommendation 57 - Creation of national in-custody informer registry

The Government of Ontario should use its good offices to promote a national in-custody informer registry.

Recommendation 58 - Police videotaping of informers

The Durham Regional Police Service should amend its operational manual to provide that all contacts between police officers and in-custody informers must, absent exceptional circumstances, be videotaped or, where that is not feasible, audiotaped. This policy should also provide that officers receive statements from such informers under oath, where reasonably practicable. The Ministry of the Solicitor General should facilitate the creation of a similar policy for all Ontario police forces.

Recommendation 59 - Reliability voir dires for informer evidence

Consideration should be given to a legislative amendment, providing that the evidence of an in-custody informer as to the accused’s statement(s) is presumptively inadmissible at the instance of the prosecution unless the trial judge is satisfied that the evidence is reliable, having regard to all the circumstances.

Recommendation 60 - Crown education respecting informers

The Ministry of the Attorney General should commit financial and human resources to ensure that prosecutors are fully educated and trained as to in-custody informers. Such educational programming should fully familiarize all Crown attorneys with the Crown policies respecting in-custody informers and appropriate methods of dealing with, and assessing the reliability of, such informers.

Recommendation 61 - Police education respecting informers

Adequate financial and human resources should be committed to ensure that Durham Regional police officers are fully educated and trained as to in-custody informers. The Ministry of the Solicitor General should liaise with other Ontario police services to ensure that similar education is provided to police forces which are likely to deal with in-custody informers. Such educational programming should fully familiarize all investigators with the police protocols respecting in-custody informers and appropriate methods of dealing with, and investigating the reliability of, such informers.

Recommendation 62 - Protocols respecting correctional records

The Ministry of the Solicitor General and Correctional Services should establish protocols (which may be incorporated in whole or in part in legislative amendments) governing access to and retention of correctional records, potentially relevant to criminal cases.

Recommendation 63 - Access by police officers to correctional facilities

The Ministry of the Solicitor General and Correctional Services should ensure that a record is invariably kept of police (and other) attendances at any provincial correctional institute. The sensitivity of a particular attendance may affect what, if any, access is given to such a record, but that should not obviate the necessity for its invariable existence.

Recommendation 64 - Placement of inmates

An accused and another inmate should not be placed together to facilitate the collection of evidence against the accused, where that placement otherwise violates institutional placement policies. In other words, the police should not encourage correctional authorities to permit an inappropriate placement to facilitate the collection of evidence. Where a placement is requested, the request should be recorded, together with the reasons stated and the identity of the requesting party.

Recommendation 65 - Placement of witnesses

Where inmates have already been identified as witnesses in a criminal case, they should be placed, wherever possible, so as to reduce the potential of inter-witness contamination. This generally means that prosecution jailhouse witnesses in the same case should not be placed together, where such separation is reasonably practicable.

Recommendation 66 - Storage and security of defence papers

The Ministry of the Solicitor General and Correctional Services should establish protocols to ensure that the accused’s legal papers can remain exclusively within his or her control in the correctional institution.

Recommendation 67 - Timing and content of informer jury caution

Where the evidence of an in-custody informer is tendered by the prosecution and its reliability is in issue, trial judges should consider cautioning the jury in terms stronger than those often contained in a Vetrovec warning, and to do so immediately before or after the evidence is tendered by the prosecution, as well as during the charge to the jury.

Recommendation 68 - Crown videotaping of informers

The Ministry of the Attorney General should amend its Crown Policy Manual to encourage all contacts between prosecutors and in-custody informers to be videotaped or, where that is not feasible, audiotaped.

Recommendation 69 - Informer as state agent

Where an in-custody informer actively elicits a purported statement from an accused in contemplation that he or she will then offer himself or herself up as a witness in return for benefits, he or she should be treated as a state agent.

b) The Inquiry Regarding Thomas Sophonow

  1. As a general rule, jailhouse informers should be prohibited from testifying. They might be permitted to testify in a rare case, such as kidnapping, where they have, for example, learned of the whereabouts of the victim. In such a situation, the police procedure adopted should be along the following lines:
    • Upon learning of the alleged confession made to a jailhouse informer, the police should interview him. The interview should be videotaped or audiotaped from beginning to end. At the outset, the jailhouse informer should be advised of the consequences of untruthful statements and false testimony. The statement would then be taken with as much detail as can be ascertained.
    • Before it can even be considered, the statement must be reviewed to determine whether this information could have been garnered from media reports of the crime, or from evidence given at the preliminary hearing or from the trial if it is underway or has taken place.
    • If the police are satisfied that the information could not have been obtained in this way, consideration should then be given as to whether the purported statement by the accused to the informer has:
      1. revealed material that could only be known by one who committed the crime;
      2. disclosed evidence that is, in itself, detailed, significant and revealing as to the crime and the manner in which it was committed; and
      3. been confirmed by police investigation as correct and accurate.
    • Even then, in those rare circumstances, such as a kidnapping case, the testimony of the jailhouse informer should only be admitted, provided that the other conditions suggested by Justice Kaufman in his Inquiry have been met.
    • In particular, the Trial Judge will have to determine on a voir dire whether the evidence of the jailhouse informer is sufficiently credible to be admitted, based on the criteria suggested by Justice Kaufman.
  2. Further, because of the unfortunate cumulative effect of alleged confessions, only one jailhouse informer should be used.
  3. In those rare cases where the testimony of a jailhouse informer is to be put forward, the jury should still be instructed in the clearest of terms as to the dangers of accepting this evidence. It may be advisable as well to point specifically to both the Morin case and the Sophonow case as demonstrating how convincing, yet how false, the evidence was of jailhouse informers.
  4. There must be a very strong direction to the jury as to the unreliability of this type of evidence. In that direction, there should be a reference to the ease with which jailhouse informers can, on occasion, obtain access to information which would appear that only the accused could know. Because of the weight jurors attach to the confessions and statements allegedly made to these unreliable witnesses, the failure to give the warning should result in a mistrial.

It may be that the best hope for curtailing the evil doings of jailhouse informers, lies in all the Provinces accepting the Manitoba Guidelines with the additional recommendations which I have suggested. It should become apparent to all that a good case for the Crown does not need to be supported by the treacherous testimony of jailhouse informers.

III. MACFARLANE PAPER

MacFarlane states that jailhouse informers are “the most dangerous of all witnesses” and says it is critical that those in a position of authority take steps to scrutinize the evidence carefully and restrict its use to those cases for which there is a clear basis to believe that the evidence can safely be relied upon. Specifically, he recommends prosecution services:[184]

  1. Establish a screening committee of senior prosecutors to assess whether a jailhouse informer should be called at trial. Helpful assessment criteria were recommended by Justice Kaufman in the Morin Commission Report (1998). They were subsequently adopted by Justice Cory in the Sophonow Commission Report (2001), and were again referred to with approval by the Commission on Capital Punishment presented to Illinois Governor George Ryan in 2002.
  2. Establish a publicly accessible registry of all decisions taken by the jailhouse informer screening committee.
  3. Enter into a written agreement with the witness, in which all of the undertakings, terms and conditions of the testimony are agreed upon. It should then be provided to the defence as part of the pre-trial disclosure, and tendered in evidence when the witness testifies.
  4. Ensure the police videotape all interviews with the witness.
  5. Not call more that one jailhouse informer in any given case, because of the cumulative effect of multiple witnesses.
  6. Not proceed to trial where the testimony of the jailhouse informer is the only evidence linking the accused to the offence.
  7. Not tender the evidence of a jailhouse informer who has a previous conviction for perjury, or any other crime for dishonesty under oath, unless the admission sought to be tendered was audio or video recorded, or the statements attributed to the accused are corroborated in a material way.

IV. CASE LAW

a) The Vetrovec Warning

Currently it is within the discretion of the trial judge to warn the jury about the reliability of a witness’s testimony by way of a Vetrovec warning.[185] In Vetrovec, Justice Dickson held that a trial judge has the discretion to issue a clear and sharp warning to the jury directed at the testimony of certain “unsavoury” witnesses. Justice Dickson made it clear that the trial judge did not have a positive duty to issue such a warning and that a common sense approach, rather than “empty formalism,” should be employed. He said:[186]

Rather than attempting to pigeon-hole a witness into a category and then recite a ritualistic incantation, the trial judge might better direct his mind to the facts of the case, and thoroughly examine all the factors which might impair the worth of a particular witness. If, in his judgment, the credit of the witness is such that the jury should be cautioned, then he may instruct accordingly. If, on the other hand, he believes the witness to be trustworthy, then, regardless of whether the witness is technically an “accomplice” no warning is necessary.

The trial judge’s discretion to provide the jury with a warning was further described by Dickson, J. as follows:[187]

Because of the infinite range of circumstances which will arise in the criminal trial process it is not sensible to attempt to compress into a rule, a formula, or a direction the concept of the need for prudent scrutiny of the testimony of any witness. What may be appropriate, however, in some circumstances, is a clear and sharp warning to attract the attention of the jurors to the risks of adopting, without more, the evidence of the witness.

The Ontario Court of Appeal, in R. v. Trudel, [2004] O.J. No. 248 (C.A.), discussed the purpose of a Vetrovec warning and made specific mention of its importance in cases involving the testimony of in-custody informers:[188]

The purpose of the Vetrovec warning is to alert the jury that there is a special need for caution in approaching the evidence of certain witnesses whose evidence plays an important role in the proof of guilt. The caution is of particular importance where there are defects in the evidence of a witness that may not be apparent to a lay trier of fact. Perhaps the most important of these is the jailhouse informer. Recent experience has shown that jailhouse informers are a particularly dangerous type of witness. The Report of the Commission on Proceedings Involving Guy Paul Morin (Toronto: Ontario Ministry of the Attorney General, 1998) and The Report of the Inquiry Regarding Thomas Sophonow (Winnipeg, Man.: Manitoba Justice, 2001) have shown that these witnesses can be very convincing liars and are capable of fabricating evidence. The Morin Inquiry Report was released in 1998 and the Sophonow Inquiry Report was released in 2001. The trial judge therefore did not have the benefit of these reports. This recent experience also shows that the motives of these witnesses may not always be apparent and that their expressed purposes for testifying, such as a distaste for the accused's particular crime, or to tell the truth and make a clean break from their criminal past are simply untrue. Their claims that they neither sought an advantage nor received one have been shown to be patently false.

b) Providing a Vetrovec Warning in In-Custody Informer Cases

The Supreme Court of Canada considered the issue of providing a Vetrovec warning with respect to in-custody informer evidence in the case of R. v. Brooks, [2000] 1 S.C.R. 237. The Court split four to three on whether a Vetrovec warning ought to have been included in the trial judge’s charge to the jury on the evidence of the two disreputable Crown witnesses. Although the majority of the Court held that the accused’s conviction should be upheld, only three of the four justices in the majority agreed that the trial judge was correct in not issuing a warning about the in-custody informer testimony to the jury.[189] The fourth member of the majority, Binnie J., agreed that the conviction should be upheld on the sum of the evidence, but sided with the minority in ruling that the trial judge erred in not issuing a Vetrovec warning with respect to the in-custody informer testimony.

Major J., writing for the majority on this issue,[190] found that the trial judge erred in failing to give a Vetrovec warning. He stated that two main factors are relevant when deciding whether a warning is necessary:

  • the witness’s credibility; and
  • the importance of the witness’s testimony to the Crown’s case.

Major J. considered the recommendations of the Morin Inquiry and the implications of these recommendations with respect to the credibility problems associated with jailhouse informers. He noted that the trial judge in the case did not have the benefit of this report, but said that with its availability, trial judges should consider such factors as these in determining whether or not a Vetrovec warning is necessary in the circumstances of a particular trial. Major J. stated that the credibility of the two informers was inherently suspect and that the risks associated with the use of jailhouse informers, along with the character of the witnesses and the conditions to be considered in the Morin Inquiry, should have led the trial judge to provide a Vetrovec warning. In addition, while there was independent circumstantial evidence against the accused, the evidence of the informers was of sufficient importance to mandate a Vetrovec warning.

Major J. stated that, at minimum, a proper Vetrovec warning must focus the jury’s attention specifically on the inherently unreliable evidence. It should refer to the characteristics of the witness that bring the credibility of the evidence into serious question and should plainly emphasize the dangers inherent in convicting an accused on the basis of such evidence unless confirmed by independent evidence.

In his separate judgment, Binnie J. found that the evidence of the “jailhouse informants” in the case was tainted by a combination of some of the more notorious badges of testimonial unreliability, including the opportunity to lie for personal benefit, and the jury ought to have been given a clear and sharp warning to that effect. However, he concluded that the verdict would have been the same had the error not been made, given the strength of the evidence against the accused.

Binnie J. set out some of the case law and literature that has considered the dangers posed by the testimony of in-custody informers:[191]

The courts have grappled for some years with a growing concern that a conviction based on the evidence of jailhouse informants has led in the past to some wrongful convictions and should be treated with special caution: R. v. Frumusa (1996), 112 C.C.C. (3d) 211 (Ont. C.A.); R. v. Simmons (1998), 105 O.A.C. 360 (C.A.); Report of The Commission on Proceedings Involving Guy Paul Morin, the Honourable Fred Justice Kaufman, C.M., Q.C., 1998; C. Sherrin, "Jailhouse Informants, Part I: Problems with their Use" (1998), 40 C.L.Q. 106, and "Jailhouse Informants in the Canadian Criminal Justice System, Part II: Options for Reform" (1998), 40 C.L.Q. 157; the Report of the 1989-1990 Los Angeles Grand Jury: Investigation of the Involvement of Jail House Informants in the Criminal Justice System in Los Angeles County (June 26, 1990). The most extensive review of this issue in Canada is the Justice Kaufman Report, which concludes at p. 638:

The evidence at this Inquiry demonstrates the inherent unreliability of in-custody informer testimony, its contribution to miscarriages of justice and the substantial risk that the dangers may not be fully appreciated by the jury.

Binnie J. stated that the trigger for caution when dealing with the testimony of in-custody informers is not so much the label “jailhouse informant” as it is the existence of a number of factors that can affect the credibility of the particular witness:[192]

… ‘jailhouse informant’ is a term that conveniently captures a number of factors that are highly relevant to the need for caution. These include the facts that the jailhouse informant is already in the power of the state, is looking to better his or her situation in a jailhouse environment where bargaining power is otherwise hard to come by, and will often have a history of criminality.

He observed that the two informers in the case exhibited the worst features of jailhouse informers, in that they were career criminals who had a history of coming forward to offer incriminating testimony in return for personal gain. The jury in the case should have been warned to proceed with caution. Binnie J. disagreed with Bastarache J. that the trial judge’s instruction to the jury on credibility amply conveyed the dangers associated with the informer’s testimony because the trial judge did not clearly express to the jury the risks of adopting, without more, the evidence of these witnesses.

In R. v. Baltrusaitis (2002), 58 O.R. (3d) 161 (C.A.), a first-degree murder case, the Ontario Court of Appeal considered Brooks, supra in deciding whether it was incumbent on the trial judge to provide the jury with a Vetrovec warning with respect to the evidence of a jailhouse informer. The Court held that a Vetrovec warning was required because the informer’s testimony suffered from serious credibility problems and, although his evidence was perhaps not crucial to the Crown’s case, it was very important to it. The informer’s credibility was inherently suspect because he was a young man with a substantial criminal record; many of his convictions involved offences of dishonesty and untrustworthiness; he had shown in the past that he was willing to sacrifice the interests of a good friend to further his own self-interest; his motivation for contacting the authorities and cooperating with them was based entirely on his own self-interest; he gave evidence at trial that was inconsistent with his initial statement to the police; and he attributed information to the accused that was clearly incorrect. The Court found his credibility problems to be extremely serious, if not overwhelming. With respect to the importance of his testimony, the Court said: “his was the only direct evidence implicating the accused as the killer. In that sense, it provided the Crown with the fill needed to plug the potential cracks in its circumstantial case.”[193]

The Court also found that the trial judge should have warned the jury, by way of direction, of the possibility that the informer received innocent information from the appellant and converted it into inculpatory evidence. Moldaver J.A. said:[194]

To my mind, this is one of the great dangers associated with the testimony of jailhouse informers and in cases where it conceivably exists, the jury should be alerted to it and told to proceed with extreme caution. (For an insightful and comprehensive discussion of the many dangers associated with the testimony of jailhouse informants see The Honourable Justice Peter Cory, “Report on the Inquiry Regarding Thomas Sophonow” (2001), at pp. 63-74).

Based on these, and other, errors, the Court quashed the conviction and ordered a new trial.

c) Independent Confirmatory Evidence

Major J. explained in Brooks, supra, at para. 95, that the Vetrovec warning “should also be accompanied by a reference to the evidence capable of providing independent confirmation of the unsavoury witness’s testimony. The independent confirmation relates to other evidence that would support the credibility of the unsavoury witness.” In R. v. Kehler, [2004] S.C.J. No. 1, the Supreme Court held that while confirmatory evidence should be capable of restoring the trier’s faith in relevant aspects of the witness’s account, the term “relevant” should not be equated with “disputed.” Triers of fact will not lightly accept unsupported assertions by a disreputable witness where nothing but his or her word implicates the accused in the commission of the crime charged. However, having considered the totality of the evidence, the trier of fact is entitled to believe the evidence of the disreputable witness – even on disputed facts not otherwise confirmed – if the trier is satisfied that the witness, despite his or her frailties or shortcomings, is truthful.

In R. v. Dhillon, [2002] O.J. No. 2275 (C.A.), the Ontario Court of Appeal quashed a murder conviction and ordered a new trial because of the trial judge’s improper instruction on evidence capable of confirming the testimony of the jailhouse informer. The Court held that the trial judge quite properly decided to give the jury a Vetrovec warning about the informer’s evidence. The trial judge reviewed with the jury the disreputable nature of the witness’s character, including his criminal record, and he repeated to the jury several times that, as a matter of common sense, they needed to find some confirmatory evidence tending to persuade them that the jailhouse informer was telling the truth before they could rely on his evidence. The Court of Appeal found the trial judge erred in illustrating for the jurors the type of evidence they might find to be corroborative, as six of the seven examples the trial judge gave of potentially confirmatory evidence were not capable of confirming the evidence of the jailhouse informer. The Court held that leaving this evidence with the jury as confirmatory evidence amounted to an error of law.

V. IN-CUSTODY INFORMER POLICIES CURRENTLY IN PLACE

In response to the Morin and Sophonow Inquiries, a number of provinces have issued policies and guidelines on the use of in-custody informer evidence.

a) Manitoba

Following on the heels of the Sophonow Inquiry, and in recognition of the inherent dangers associated with this type of witness, on November 5, 2001, the Manitoba Department of Justice issued its in-custody informer policy directive.

The directive states, “Except in the unusual circumstances as permitted by this policy directive, in-custody informers should not be called to testify on behalf of the Crown.” The policy applies where any inmate, imprisoned in either a provincial or federal correctional facility, anywhere in Canada, usually pending a trial or awaiting sentence, claims to have heard another prisoner make an admission about his or her case and seeks to testify about it on behalf of the Crown. It is immaterial whether the proposed inmate witness seeks a benefit from the Crown or not. The policy does not apply in the case of police undercover operators nor to limit the use of in-custody informers to advance police investigations.

Before being considered, the statement of the in-custody informer must be reviewed to ascertain whether the information could have been garnered from other sources. If not, then the full circumstances of the case and background of the informer must be assessed pursuant to a lengthy set of criteria.

The directive states that the Crown should never call an in-custody informer who has a previous conviction for perjury or other convictions for dishonesty under oath, unless the admission of the accused has been recorded (via audio or video) and the authenticity of the recording has been verified. The Crown should not proceed to trial where the testimony of the in-custody informer is the sole evidence linking the accused to the offence. No more than one in-custody informer should be used, even if others meet the test.

The policy creates the In-Custody Informer Assessment Committee, with a mandate to consider the proposed witness’s evidence, his or her background and the application of the criteria set out therein to the case in question. The decision to call the in-custody informant as a witness will be made by the Committee. The police will be requested to conduct an investigation to assist in making a decision on the suitability of calling the in-custody informer as a witness. Prior to a decision being made, the in-custody informer must provide a videotaped statement in accordance with the decision of R. v. K.G.B.

Once a decision has been made by the Committee to either call or not call the informer as a witness, the Deputy Attorney General must be advised. He or she is required to maintain a registry of all decisions of the Committee.

If the Committee decides that an in-custody informer will be called to testify, the policy requires that additional information be disclosed to the defence in a timely fashion, including:

  • the criminal record of the informer;
  • the Manitoba Registry record of the informer, if any;
  • particulars of any benefits, promises or undertakings between the informer and the State, including any written agreements to testify;
  • any other known evidence attesting or diminishing the credibility of the informer, including any relevant medical or psychological reports accessible to the Crown, as well as all of the materials placed before the Committee, providing it is lawful to disclose them.

Where an in-custody informer has been approved to testify, the Department must enter into a written agreement with the informer to testify. Crown counsel must provide this agreement to the defence as part of the pre-trial disclosure and will seek to file it with the Court as an exhibit before the person testifies. If the agreement contemplates the conferring of a benefit on the informer, that benefit should be conferred before he or she testifies. No benefit must be conditional on the conviction of the accused. The informer must be clearly advised that any benefits are based on the understanding that the testimony provided in court is truthful. If the informer is charged with further offences prior to completing their testimony, the prosecutor must re-assess the future use of the informer as a witness for the Crown.

Where an in-custody informer has lied to the police, Crown or the court, he or she will be vigorously prosecuted by a counsel independent of the prosecution. If convicted of perjury or a similar offence, Crown counsel must ask for a significant consecutive term of imprisonment.

b) Ontario

The Ontario Ministry of the Attorney General responded to the Morin Inquiry by introducing new policies, educational programming and changes to operations, all aimed at further reducing the risk of wrongful conviction. The dangers presented by in-custody informers was targeted as a major area of reform, resulting in educational initiatives, a comprehensive Crown policy and the creation of the Ontario In-Custody Informer Committee in June of 1998.

Ontario’s In-Custody Informer Committee Procedure

The use of in-custody informer evidence at trial[195] is contingent upon a stringent screening and vetting process prescribed by the Crown policy on in-custody informers. The screening process requires the Crown and police to conduct a rigorous and comprehensive analysis of the proposed in-custody informer’s reliability as well the public interest factors weighing for and against the use of the informer’s testimony. The policy sets out detailed criteria and principles to guide this analysis. If the Crown is still considering relying on the informer’s evidence at trial after having applied the standards set out in the policy, the matter must be referred to the In-Custody Informer Committee.

The In-Custody Informer Committee consists of a Chairperson[196] and either two or four additional members, including the local Crown Attorney, one or two experienced trial or appellate Crown counsel from another region[197] and the Director of Crown Operations where the case is to be tried.[198] The trial Crown submits detailed materials to the Committee, including a written analysis of the informer’s reliability as prescribed by the principles and criteria set out in the In-Custody Informer Policy. Once the materials are received, they are reviewed by the Committee and a date is set for a meeting with the trial Crown to discuss the proposed use of the informer.

Generally, the trial Crown and Officer in Charge seeking to rely on the evidence of an in-custody informer will need to invest a significant amount of time[199] to prepare the materials for the In-Custody Informer Committee’s review. Not only must comprehensive materials be collected to provide a solid foundation for a thorough consideration of the public interest in using the informer’s evidence, but the Crown must also provide his or her own independent analysis of the informer’s reliability and public interest criteria as set out in the Crown policy. As a result of this intensive preparation process, the trial Crown is well-acquainted with the dangers and issues relating to the potential use of in-custody informers well before the Committee actually meets.

The amount of preparation time for In-Custody Informer Committee members depends on the breadth of supporting materials submitted by the Crown. All cases considered by the Committee to date have been either attempted murder or murder cases with substantial briefs and materials. A very rough average of the amount of time required for Committee members to prepare each case is two to five days.

The In-Custody Informer Committee meeting is generally attended by the trial Crown and the officer in charge of the case. The case and the informer are reviewed and discussed in intensive detail, with a view to determining whether there is a compelling public interest in adducing the informer’s evidence at trial. The decision includes, but is not limited to, analysis of numerous indicia of reliability itemized and described in the In-Custody Informer Policy, any consideration that the in-custody informer has been promised or received, safety issues, informer privilege and the strength of the Crown’s case with or without the informer. After meeting with the trial Crown and officer in charge, the Committee will apply the Crown policy and make a final determination as to whether, at this juncture, there is a compelling public interest in calling the informer as a witness. The decision may always be reviewed if circumstances change.

Impact of the In-Custody Informer Committee on Ontario’s Prosecution Service

Over time, the Committee procedure has evolved into a resource and support process for counsel prosecuting challenging cases. The trial Crown has a unique opportunity discuss the case and trial strategy with a group of highly experienced counsel. While collegial support is always welcome and available, the In-Custody Informer Committee is able to bring the additional perspective of counsel from outside the jurisdiction with expertise, not only in criminal prosecutions, but also in the risk factors for wrongful conviction. As a result, the In-Custody Informer Committee has developed from a novel entity regarded with some suspicion into a highly-respected sounding board for Crown counsel preparing for difficult and significant prosecutions.

Anecdotal information suggests that the principles and procedures introduced by the In-Custody Informer Policy and the Committee have filtered into the culture and consciousness of the Ontario prosecution service. Police and Crown counsel have become more proactive in assessing informer reliability and public interest factors in deciding whether to bring an application to the Committee in individual cases. As well, the presentation of cases to the Committee is demonstrating an increasingly keen awareness by Crown counsel of the risks of relying on informer evidence as well as the strategic considerations that might militate against using an informer even when the Committee gives its approval.

At a basic level, police and Crown counsel are aware that the preconditions to adducing informer evidence include a very substantial amount of preparatory work and a rigorous, intensive analytical process. In addition, the fundamental dangers associated with in-custody informer evidence are now extremely well understood within the Ontario prosecution system. The cumulative result is more sophisticated applications to the In-Custody Informer Committee and a greater degree of screening and vetting before applications are made to the Committee.

There has been some speculation by In-Custody Informer Committee members that potential informers have also begun to react to the new criteria for reliance on informer evidence. Although there is no empirical confirmatory information, there is a general sense that some informers are aware that there is a vetting process in place, or at least a higher and more complex threshold for using their evidence. Specifically, some members of the In-Custody Informer Committee have observed that some informers are making new and extra efforts to enhance their appearance of reliability in accordance with the criteria specified in the In-Custody Informer Policy. This phenomenon only serves to underscore the ingenuity of this sort of witness and the need for vigilance whenever the use of informer evidence is contemplated.

Future Directions in Ontario

The In-Custody Informer Committee has assumed a vital and dynamic role in the preparation of cases where an in-custody informer’s evidence may be relied upon. Although it represents only one component of a more comprehensive strategy to educate Crown counsel regarding the dangers of these witnesses, the Committee continues to contribute significantly to the prosecution service’s sensitivity to the systemic risk factors for wrongful conviction and the sophistication of individual Crown counsel’s preparation for cases in which an in-custody informer has come forward.[200]

To date, membership in the Committee has generally been confined to those with substantial expertise, not only in the prosecution of serious cases but also in the systemic causes of wrongful conviction. It is hoped that the pool of counsel with the necessary degree of expertise can be broadened, both to maintain the health and vigour of the Committee but also to continue to perpetuate awareness of the legal and other factors that can contribute to wrongful conviction.

In addition, the In-Custody Informer Policy and In-Custody Informer Committee procedures will be periodically reviewed and updated in accordance with jurisprudential analysis, systemic change and lessons learned.

c) New Brunswick

In March 2003, the Department of Justice in New Brunswick issued a guideline on “Public Interest Agreements,” which includes a section on in-custody informants. It reads as follows:

Special Problem of In-Custody Informant Witness

Definition: An in-custody informant witness is one who allegedly receives a statement from an accused while both are in custody, where the statement relates to an offence that occurred outside of the institution, and who does not have direct knowledge of the offence independent of the alleged statement of the accused. The accused need not be in custody for, or charged with, the offence that occurred outside of the institution.

A difficult decision for a Crown Prosecutor to make is whether to rely on the evidence of an in-custody informant. The decision has become more difficult in light of recent cases of unlawful conviction, especially the case of Morin in Ontario leading to the Morin Inquiry and other recent high profile in-custody informant cases. The prevailing view based on experience is that the testimony of an in-custody informer is inherently suspect and that reliance on this type of evidence should be the exception, not the rule.

The law presently does not support a trial judge determining by means of a voir dire whether the testimony should be presented to the jury. The traditional approach is for the jury to assess the reliability of a witness once properly instructed by the trial judge. Proper instruction in regards to an in-custody informant as witness may include a Vetrovec caution. Given the high propensity for harm in relying on an in-custody informant careful consideration must be given in making an assessment as to whether the in-custody informant should be called as witness for the Crown.

The policy guideline goes on to set out the decision process. Regional Crown Prosecutors, and Crown Prosecutors directly involved in the prosecution of a case under review where an immunity and/or benefit agreement is being considered, should not, for the purpose of negotiation of an agreement, have direct dealings with any informant or in-custody informant. A comprehensive assessment of the potential testimony must be made before the advisability of proceeding with an informant as a witness can be determined. In a difficult case, it is preferable that the assessment be made by a Senior Crown Prosecutor from an office that is not involved in the prosecution. Appendix A of the policy guideline provides a specific check-list of issues to be considered in making an assessment as to whether an in-custody informant should be called as a witness. Upon receiving the Crown Prosecutor’s assessment, the Regional Crown Prosecutor shall, after consultation with the Director of Public Prosecutions, prepare a recommendation and forward it to the Director.

If the Crown is prepared to ask a judge or jury to base a conviction on the evidence of an informant or in-custody informant, the Regional Crown Prosecutor must be satisfied that a thorough and exhaustive review of the informant has been undertaken, that the evidence is credible, and that the public interest consideration is compelling. In all cases, the standard to be met is that it is reasonable to anticipate that the decision is not likely to bring the administration of justice into disrepute.

d) Alberta

On July 5, 1999, the Honourable Dave Hancock, Minister of Justice and Attorney General, released a policy guideline on the use of in-custody informant evidence in Alberta. The guideline states that in-custody informant evidence should only be adduced where there is a compelling public interest in doing so and after the matter has been thoroughly reviewed.

The guideline sets out principles to consider in determining whether there is a compelling interest in relying on the evidence of an in-custody informer. The policy also contains information and instructions on the following topics: Restrictions in Dealing with In-Custody Informers (informer privilege, independent legal advice, safety/security issues, consideration, negotiating with in-custody informers); Assessing the Reliability of an In-Custody Informer as a Witness, In-Custody Informer Review by an Outside Director, Materials to be Submitted to and Considered in a Review [by the Outside Director], the Decision of the Outside Director or the Assistant Deputy Minister, Agreements with In-Custody Informers, Disclosure Respecting In-Custody Informers as Witnesses, and Prosecution of Informer for Giving False Statements.

With respect to review by an Outside Director, the policy states:

In every case, the decision to use an in-custody informer shall be referred by the Director responsible for the case to an Outside Criminal Justice Director. The Outside Director will decide if there is compelling public interest in presenting the evidence of the in-custody informer. In the event of disagreement, the matter shall be referred to the Assistant Deputy Minister, Criminal Justice Division for decision.

e) Newfoundland and Labrador

Newfoundland and Labrador has also included instructions with respect to the use of in-custody informant evidence in its Crown Policy Manual. It states:

An “in-custody informant” is a person who indicates that while he or she and the accused were in custody, the accused made a statement concerning an offence. Prior to the Crown calling such a witness to testify the Senior Crown and the Director must be advised. The Crown Attorney conducting the trial shall refrain from being involved in any negotiation with the informant. The Crown Attorney shall request, in writing, that the police provide the following type of information:

  • does the witness have a criminal record?
  • has the witness ever testified as an informant before?
  • has the witness requested anything in exchange for his or her
  • testimony?
  • have the police offered or given the witness anything?
  • how did the police become aware of the existence of the
  • witness? and
  • what contact have they had with the witness?

This material must be disclosed according to the guidelines set out in R. v. Stinchcombe and this policy manual. The Crown Attorney must inform the police that they should not offer the witness anything on our behalf such as withdrawal of charges, reduction of sentence, etc. without the approval of the Crown.

f) Nova Scotia

In 2002, Nova Scotia’s Director of Public Prosecutions issued a Directive, patterned on the Ontario policy and incorporating many specific recommendations of the Morin Inquiry. It states that while the evidence of an in-custody informer is admissible in court and can properly form part of the case for the Crown, “it should only be adduced at trial where there are sufficient indicia of reliability and a compelling public interest in doing so.” The Directive then spells out 10 principles to be considered in determining whether such a compelling public interest exists. Prosecutorial discretion may only be exercised in favor of adducing the evidence of the in-custody informer where the In-Custody Informer Committee has determined, by a majority of 4 out of 5, that there is a compelling public interest in doing so.

The Directive reminds prosecutors of their “heavy onus” to make complete disclosure about the in-custody informer. Prosecutors should ensure that any agreements made with in-custody informers relating to consideration in exchange for information or evidence are fully documented, in writing and in clear language. The prosecutor dealing with an informer should generally not be the prosecutor who will conduct the case and should ensure that the informer is aware of the advisability of seeking independent legal advice.

VI. RECOMMENDATIONS

Best practices in dealing with in-custody informers must be rigorous enough to protect the administration of justice from false testimony but sufficiently flexible to prevent the arbitrary exclusion of relevant and reliable evidence. It is well known that in-custody informers are often most proficient at presenting information that has the appearance of reliability. Experience has demonstrated that many skilled, fair and well-meaning police and prosecutors have fallen prey to self-serving and manipulative informers. Compounding the problem, defence counsel and judges have not always been armed with sufficient information to adequately inoculate juries against the inherent unreliability of these types of witnesses.

Accordingly, policies and practices aimed at reducing the risk of in-custody informers precipitating wrongful convictions must cut across the entire justice system. Police, prosecutors, defence counsel and the bench must have access to effective educational programming and information about the connections between in-custody informer evidence and the potential for a wrongful conviction. In addition, specific policies and operational protocols need to be created to assist, support and guide police, prosecutors and correctional officials in their dealings with in-custody informers.

The specific features of in-custody informer educational programming, policy and protocol should be tailored to reflect the unique characteristics and needs of different jurisdictions within Canada. Nevertheless, there are some common factors that should be consistently present, including:

  • Educational programming should be provided to all justice professionals who are likely to encounter in-custody informers. Moreover, education in this area should be offered on a recurring basis, and address not only jurisprudential developments but other aspects of in-custody informer tactics and the damage that false evidence can cause.
  • Educational materials, ideally in the form of policy guidelines, should be available to police and prosecutors. These materials should highlight the risks of wrongful conviction associated with in-custody informers and the factors that contribute to their unreliability.
  • Crown policy standards should be instituted for the screening, vetting and limiting the use of in-custody informer evidence. These standards should apply not only to evidence adduced at trial but also to in-custody informer testimony at preliminary inquiries, pre-trial motions and sentencing hearings.
  • An In-Custody Informer Committee, comprised of senior prosecutors with no connection to the particular prosecution, should be established to screen potential in-custody informers in any given case. The In-Custody Informer Committee should assess each case according to rigorous criteria designed to test the reliability of the in-custody informer’s evidence and determine whether, ultimately, there is a compelling public interest in relying on informer information.
  • The In-Custody Informer Committee should re-evaluate the use of the in-custody informer’s evidence or information in the event of any relevant, material change in circumstances, such as new charges, additional requests for consideration, recantation or other developments in the case.
  • Prosecutors must ensure that in-custody informers have access to independent legal advice with respect to the operation and waiver of informer privilege.
  • Any prosecutor involved in negotiating consideration with an in-custody informer should generally not be the one to tender the informer’s evidence in court.
  • Any agreements made with in-custody informers relating to consideration in exchange for information or evidence should, absent exceptional circumstances, be reduced to writing and signed by a prosecutor (in consultation with the relevant police service/investigative agency), the informer, and his or her counsel (if represented). A fully recorded oral agreement may substitute for a written agreement.
  • Prosecutorial policy guidelines must emphasize the need to ensure that disclosure in relation to in-custody informers is both full and fair. Ideally, prosecutors should be assisted by specific guidance itemizing the minimum standards for disclosure. As well, the ongoing nature of the disclosure obligation, particularly in relation to these types of witnesses, should be emphasized in educational programming and codified in prosecutorial policy.
  • In-custody informers who give false evidence should be vigorously and diligently prosecuted in order to, among other things, deter like-minded members of the prison population.
  • Each province should establish an in-custody informer registry so that police, prosecutors and defence counsel have access to information concerning prior testimonial involvement of in-custody informers. As a more long-term objective, the creation of a national in-custody informer registry should be considered. Repeated use of in-custody informers should be avoided.

VII. SUMMARY OF RECOMMENDATIONS

  1. Cross-sectoral educational programming should be provided to ensure that all justice professionals are aware of:
    1. the dangers associated with in-custody informer information and evidence;
    2. the factors affecting in-custody informer reliability;
    3. policies and procedures that must be employed to avoid the risk of wrongful convictions precipitated by in-custody informer information or evidence.
  2. Policy guidelines should be developed to assist, support and limit the use of in-custody informer information and evidence by police and prosecutors.
  3. Provincial in-custody informer registries should be established so that police, prosecutors and defence counsel have access to information concerning prior testimonial involvement of in-custody informers. The creation of a national in-custody informer registry should be considered as a long-term objective.
  4. A committee of senior prosecutors unconnected with the case should review every proposed use of an in-custody informer. The in-custody informer should not be relied upon except where there is a compelling public interest in doing so. The In-Custody Informer Committee’s assessment should take into account, among other things, factors affecting the reliability of the information or evidence proffered by the informer. That reliability assessment should, moreover, begin from the premise that informers are, by definition, unreliable. Any relevant material change in circumstances should be brought to the In-Custody Informer Committee’s attention to determine whether the initial decision as to whether there was a compelling public interest in relying on the in-custody informer should be revisited.
  5. Any agreements made with in-custody informers relating to consideration in exchange for information or evidence should, absent exceptional circumstances, be reduced to writing and signed by a prosecutor (in consultation with the relevant police service/investigative agency), the informer, and his or her counsel (if represented). A fully recorded oral agreement may substitute for a written agreement.
  6. In-custody informers who give false evidence should be vigorously and diligently prosecuted in order to, among other things, deter like-minded members of the prison population.

  • [181] See, for example, the Report on Investigation Into the Use of Informers (Sydney: Independent Commission Against Corruption, 1993) and the Report of the 1989-1990 Los Angeles Grand Jury: Investigation of the Involvement of Jail House Informers in the Criminal Justice System in Los Angeles County, June 26, 1990.
  • [182] Morin Inquiry, p. 556.
  • [183] Morin Inquiry, p. 602.
  • [184] pp. 84-85.
  • [185] Vetrovecv. The Queen, [1982] 1 S.C.R. 811. Note that the Morin Inquiry did not advocate for a mandatory warning about the dangers of in-custody informer testimony in all cases, however, it did recommend that trial judges should consider issuing a warning stronger than the standard Vetrovec warning when in-custody informer evidence is introduced.
  • [186] Ibid. at 823.
  • [187] Ibid. at 831.
  • [188] R. v. Trudel, [2004] O.J. No. 248 (C.A.) at para. 76.
  • [189] Bastarache J., writing for the minority on this issue, ruled that it is not necessary to give a Vetrovec warning where the witness is a jailhouse informer if the trial judge believes that the witness can be trusted. He found there was a basis here for the trial judge to exercise his discretion and not give a warning.
  • [190] Major J. was in the minority on the ultimate issue in deciding that the conviction should be quashed and a new trial ordered.
  • [191] R. v. Brooks at p. 285.
  • [192] R. v. Brooks, at p. 286.
  • [193] R. v. Baltrusaitis (2002), 58 O.R. (3d) 161 (C.A.) at para. 55.
  • [194] Ibid. at para. 66.
  • [195] The informer committee also screens in-custody informer evidence for potential use on sentencing. Where the Crown is considering relying on the evidence of an in-custody informer on a preliminary inquiry, Crown counsel must bring the matter to the attention of the regional Director of Crown Operations, who will determine whether it should be referred to the In-Custody Informer Committee for review prior to the commencement of the preliminary inquiry. The Committee will reassess the use of the informer after the preliminary inquiry.
  • [196] Appointed by the Assistant Deputy Attorney General.
  • [197] One counsel for a three-member Committee and two counsel for a five-member Committee.
  • [198] For a five-member Committee (almost all In-Custody Informer Committee reviews to date have been conducted by five-member Committees).
  • [199] The actual amount of time will necessarily vary, depending on the case. This process has been known to take several months.
  • [200] While not mandatory, an In-Custody Informer Committee review is also available to Crown counsel who are contemplating reliance upon an unsavoury witness who is not technically an in-custody informer.

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