Chapter 7 – In-Custody Informers

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I. Introduction

Jailhouse informers are notorious as a class of self-serving and unreliable witnesses. Widespread recognition of their inherent unreliability has grown in the aftermath of public inquiries into wrongful convictions where jailhouse informers figured prominently (see the Morin and Sophonow Inquiries recommendations reviewed in the 2005 Report). As of today, most provinces have taken significant proactive steps to deal with the issues associated with jailhouse informers, such as the introduction of specific provisions in Crown Policy Manuals and Policy Directives. As a result of increased awareness, education and strong Crown policy direction, prosecutors take a very cautious approach to the use of these potential witnesses.

The recommendations by these inquiries have also led to important changes in the use and treatment of this type of evidence by the courts. Courts now recognize, and generally accept, that jailhouse informers, who are often waiting to be dealt with by the same criminal justice system that they offer to “assist,” have major credibility issues and may be concerned only with advancing their own interests. It is not surprising, therefore, that jailhouse informers as a category of witnesses continue to prove themselves inherently unreliable.Footnote 235

However, this fact is balanced with the reality that jailhouse informers are sometimes considered necessary to the justice system because of their unique position to acquire potential information directly from the accused. Despite obvious reliability problems, they are sometimes still relied on to provide persuasive confessions, most notably in the context of high profile murder cases.Footnote 236 Given that there is no legislative or common law basis to disallow jailhouse informer testimony from a jury’s consideration, courts attempt to maintain balance by trying to control the reliability issues associated with this type of witness with a warning to juries about relying on the informer’s unsupported testimony (the “Vetrovec” warning). Recent developments in the law continue to give trial judges latitude and discretion regarding whether to provide a Vetrovec warning in a given case. The Supreme Court of Canada, however, has provided some guidance recently on what needs to be included to constitute an adequate Vetrovec warning.

An “in-custody informer” or “jailhouse informer” is defined as an inmate who approaches the authorities with incriminating information about an accused – most often an alleged confession from the accused – that was obtained while they were incarcerated together.Footnote 237 Specifically, the inmate:

  1. allegedly receives one or more statements from an accused;
  2. while both are in custody;
  3. where the alleged statements relate to offences that occurred outside of the custodial institution.

This definition does not include someone the authorities have intentionally placed near the accused for the specific purpose of acquiring evidence, nor does it include a confidential informer who provides information that is used solely for the purpose of furthering a police investigation.

II. 2005 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 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 regarding the 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.

III. Canadian Commissions of Inquiry Since 2005

The use of in-custody informers at trial continues to be identified as a significant contributing factor in cases of wrongful convictions.

a) The Lamer Commission of Inquiry Pertaining to the Cases of Ronald Dalton, Gregory Parsons, and Randy Druken (2006)

Commissioner Lamer stated the following about jailhouse informants:

Jailhouse informants are notorious for fabricating confessions alleged to be made by an accused awaiting trial, while the two of them were in prison together. Often the informant seeks some reward such as leniency in return for testifying against the accused. The courts have long recognized the dubious reliability of their testimony. However, it was only with the more recent Morin and Sophonow inquiries that their role in contributing to wrongful convictions was fully exposed.Footnote 238

Commissioner Lamer adopted Commissioner Cory’s recommendations in the Sophonow Report,Footnote 239 finding that they provided the best approach to the potential testimony of jailhouse informants. He recommended that Commissioner Cory’s recommendations be incorporated into the Crown Policy Manual of Newfoundland and Labrador for dealing with jailhouse informers.Footnote 240

b) Report of the Commission of Inquiry into Certain Aspects of the Trial and Conviction of James Driskell (2007)

The Crown’s case against Mr. Driskell rested largely on the evidence of two of his associates. The central issue at the Inquiry was the failure to fully document and disclose relevant information with respect to the credibility of the two unsavoury witnesses.Footnote 241 Commissioner LeSage made the following recommendation:

…the (Winnipeg Police Service) policies and Manitoba Justice policies be revised to specifically provide that all benefits requested, discussed, or provided or intended to be provided at any time in relation to any “central” witness be recorded and disclosed.Footnote 242

IV. Legal Developments and Commentary

a) Introduction

Concerns that innocent people may be convicted on the basis of unreliable evidence from jailhouse informers are most acute in the context of jury trials. The Kaufman Commission Report has reviewed in detail how and why a jailhouse informer can lie so convincingly to the police, prosecutors, judges and juries. They are capable of inventing plausible confessions based on information they have pulled together from other sources, including media reports, disclosure they manage to review, and case-related conversations they participate in or have overheard. They repeatedly con seasoned criminal justice officials with ease. How can jurors, therefore, who generally lack the experience and knowledge required to evaluate the evidence, be expected to detect a jailhouse informer’s perjury?

Recent case law endorses the established view that trial judges retain the discretion whether or not to offer a Vetrovec warning. The current trend, however, suggests that appellate courts are more willing to intervene and to overturn criminal convictions on the basis that the warning was not offered or, if offered, its content was inadequate. Recognizing the danger associated with this group of witnesses as highlighted by cases where there have been miscarriages of justice, the Supreme Court of Canada released R. v KhelaFootnote 243 – a decision that offers guidance to trial judges who offer a Vetrovec warning, setting out the general characteristics that must be included.

Trial judges continue to be required to weigh the reasons to suspect that the informer may be untruthful and the importance of the informer’s testimony to the prosecution’s case. It is generally accepted that the more untrustworthy the witness and the more crucial the evidence, the more likely that a Vetrovec warning will be required. Ultimately, the quality and weight of the informer’s evidence continues to be determined by the jury.

b) The Vetrovec Warning

In Vetrovec, Justice Dickson held that a trial judge has the discretion to issue a clear and sharp warning to the jury to warn it about the reliability of the testimony of certain “unsavoury” witnesses – no particular category of witnesses was identified as requiring such a warning, no need to frame a warning in technical or formulaic language, and no need to include any legal definition of “corroboration” to explain to the jury the type of evidence capable of supporting the testimony of an unsavoury witness. Justice Dickson made it clear that a common sense approach, rather than “empty formalism,” should be employed.Footnote 244

The decision to apply a common sense approach to “unsavoury witnesses” at trial on a case-by-case basis was a welcome change from the rigid, cumbersome “pigeon-hole” approach previously employed. Decisions since Vetrovec have supported this common sense approach, and herald the importance of preserving the trial judge’s discretion on when to offer and what to say in a warning.

Since the 2005 Report, there have been a number of decisions that focus on whether the trial judge should have offered a warning and/or the adequacy of the warning offered. Appellate courts remain sensitive to the pre-Vetrovec era of “blind and empty formalism” and do not want to prescribe a formula, preferring instead to defer to the trial judge’s discretion on both issues. However, they are more likely than previously to intervene when a trial judge has not offered a warning with respect to certain witnesses. One explanation for this shift is the fact that courts are more aware of the inherent danger in relying on certain classes of witnesses, such as jailhouse informers, as evidenced by increased references in their judgments to findings from the public inquiries.

c) Clarification by the Supreme Court of Canada:

In January 2009, the Supreme Court of Canada released Khela,Footnote 245 a decision focused exclusively on how much deference trial judges must be shown in crafting the form and content of Vetrovec warnings.Footnote 246 Most notably, the majority of the Supreme Court upheld the tradition of deference to trial judges to craft a caution appropriate to the circumstances of the case, while finding it necessary to provide guidance regarding the general characteristics of a sufficient warning.Footnote 247 Ultimately, the majority proposed a framework to be adhered to when crafting a Vetrovec warning,Footnote 248 created in part as a response to recognition of the dangers associated with jailhouse informers:

Since the decision of this Court in Vetrovec, the very real dangers of relying in criminal prosecutions on the unsupported evidence of unsavoury witnesses, particularly “jailhouse informers,” has been highlighted more than once by commissions of inquiry into wrongful convictions (see, for example, The Commission on Proceedings Involving Guy Paul Morin: Report (1998) and The Inquiry Regarding Thomas Sophonow (2001)). The danger of a miscarriage of justice is to be borne in mind in crafting and in evaluating the adequacy of a caution.Footnote 249

The majority of the Supreme Court emphasized that the central purpose of a Vetrovec warning was “…to alert the jury to the danger of relying on the unsupported evidence of unsavoury witnesses and to explain the reasons for special scrutiny of their testimony” [emphasis added].Footnote 250 Put another way, in order to assess the risk of accepting testimony from an unsavoury witness, the jury must understand the reasons for special scrutiny. To assist with that understanding, the trial judge should identify for the jury the characteristics of the witness that bring his or her credibility into serious question.Footnote 251 The Court added the importance, in appropriate cases, of having the trial judge “also draw the attention of the jury to evidence capable of confirming or supporting the material parts of the otherwise untrustworthy evidence.”Footnote 252

The proposed framework created by the majority includes the following four main foundation elements:

  1. drawing the attention of the jury to the testimonial evidence requiring special scrutiny;
  2. explaining why this evidence is subject to special scrutiny;
  3. cautioning the jury that it is dangerous to convict on unconfirmed evidence of this sort, though the jury is entitled to do so if satisfied that the evidence is true; and
  4. the jury, in determining the veracity of the suspect evidence, should look for evidence from another source tending to show that the untrustworthy witness is telling the truth as to the guilt of the accused.Footnote 253

Even though the Supreme Court developed the above framework, the majority of the Court maintains the position that there is no particular formula for a proper Vetrovec warning, and that trial judges remain vested with significant discretion to craft an instruction in accordance with the circumstances of the trial.Footnote 254

d) Confirmatory Evidence

The majority in Khela points to the fourth component (above) as providing “guidance on the kind of evidence that is capable of confirming the suspect testimony of an impugned witness.” This component refers to independent evidence “that can provide comfort to the trier of fact that the witness is telling the truth.”Footnote 255 To be confirmatory, the evidence does not have to implicate the accused; however, it “should give comfort to the jury that the witness can be trusted in his or her assertion that the accused is the person who committed the offence.”Footnote 256

The majority explained that the absence or presence of confirmatory evidence “plays a key role in determining whether it is safe to rely on the testimony of an unsavoury witness.”Footnote 257 Therefore, the trial judge’s caution must make clear the type of evidence capable of offering support; “it is not sufficient to simply tell the jury to look for whatever it feels confirms the truth of a witness’ testimony:”Footnote 258

A truly functional approach must take into account the dual purpose of the Vetrovec warning: first, to alert the jury to the danger of relying on the unsupported evidence of unsavoury witnesses and to explain the reasons for special scrutiny of their testimony; and second, in appropriate cases, to give the jury the tools necessary to identify evidence capable of enhancing the trustworthiness of those witnesses.Footnote 259

e) Appellate Review

The majority in Khela addressed the fact that where a Vetrovec caution contains the four components outlined above, appellate courts generally will be expected to find the caution adequate. Failure to include any of the four components, however, may not prove fatal where the judge’s charge, when read as a whole, otherwise serves the purposes of a Vetrovec warning.Footnote 260

In R v. Smith, a companion case to Khela that dealt with the sufficiency of a caution by a trial judge in relation to two unsavoury witnesses, the same majority of the Supreme Court emphasized the following with respect to appellate review:

…appellate courts must not measure the sufficiency of a caution against the ruler of perfection. Instead, the inquiry should focus on whether the instruction achieved its purpose: To warn the jury of the danger of relying on the impugned witness’ testimony without being comforted, by some other evidence, that the witness is telling the truth about the accused’s involvement in the crime. The caution should also direct the jury to the type of evidence capable of providing such comfort.Footnote 261

f) Post-Khela Decisions

It can be expected that trial judges will rely on the framework set out by the majority in Khela and will craft future Vetrovec warnings accordingly. In the interim, however, appellate courts asked to consider the sufficiency of a Vetrovec warning in a given case will look to the charge to determine whether it, as a whole, has achieved the purpose of a Vetrovec warning.

One such example is found in R. v. Tymiak,Footnote 262 a post-Khela decision by the British Columbia Court of Appeal. The Court held that the use of descriptors such as “danger” or “dangerous” are not necessary when cautioning the jury about an unsavoury witness, especially when the jury would have understood from the entirety of the charge that it needed to scrutinize the witness’s testimony carefully.Footnote 263 In addition, the Court held that the trial judge was not obligated to review all of the evidence that amounted to potentially confirmatory evidence.Footnote 264

R. v. HurleyFootnote 265 involved the evidence of a jailhouse informant whose evidence was critical to the Crown’s case. The appellate court followed the analysis in Khela and looked to the charge to determine whether, as a whole, it met the purposes of a Vetrovec warning. The Court concluded:

…in my opinion, a jury’s application of a judge’s warning about relying on the testimony of a particular witness will necessarily reflect the reasons offered for the warning. In this case, a cautionary approach mandated by general indications of bad character rooted in two criminal convictions and drug abuse is surely quite a different thing than a cautionary approach inspired by the much more troubling possibility that [the witness’] evidence was specifically motivated by the prospect of securing a reward. This, no doubt, is why the Supreme Court in R. v. Khela, supra, said that a proper Vetrovec warning must not only caution the jury about the danger of convicting on the unconfirmed evidence of an unsavoury witness but must also explain why the witness’s testimony should be subject to special scrutiny. The trial judge must provide the framework for the jury to use in assessing the testimony of the witness.Footnote 266

g) The Bottom Line

The Supreme Court of Canada’s seminal decision in Khela resolves some of the issues that have arisen in recent years in relation to the use of jailhouse informers at trial. It seems clear that the Court felt the need to provide clear advice with respect to crafting Vetrovec warnings, given the present unease about the testimony of unsavoury witnesses in general, and jailhouse informers specifically, and their role in relation to wrongful convictions.

In summary, crafting the appropriate caution to the particular circumstances of each case is best left to the trial judge. While there is no particular mandatory formulation, the caution should include the four components outlined in Khela. However, failure to include any of these basic four components may not be fatal if the charge as a whole otherwise meets the purposes of a Vetrovoc warning.

As a result, appellate intervention is unwarranted absent the failure to give a cautionary instruction where one is required, or where the instruction fails to serve its intended purpose. Appellate courts are expected to focus on the content of the caution, not its form.

Criticism of the majority of the Supreme Court of Canada’s “guided” approach with respect to Vetrovec cautions includes the minority’s concern that it requires jurors to look for “material” and “independent” corroboration of unsavoury witnesses’ testimony, which detracts from what jurors really should be doing – assessing the witness’ credibility in a rational and flexible manner.Footnote 267

V. In-Custody Informer Policies Currently in Place

Most provincial prosecution services today have issued policies and guidelines on the use of in-custody informer evidence in response to the Morin and Sophonow Inquiries. The 2005 Report reviewed the policies in place at the time. This section provides an update on new policies and changes made since then.

Public Prosecution Service of Canada

The PPSC’s policy in relation to in-custody informers is found in the Federal Prosecution Service Deskbook, chapter 35. The chapter was updated following the release of the 2005 Report to recognize that the use of in-custody informers has been identified as a significant contributing factor in cases of wrongful convictions.

The policy specifies that in cases where the Chief Federal Prosecutor (CFP) believes there is an appropriate case for the use of an informer, the CFP should seek the advice of the Major Cases Advisory Committee before making a final decision. If the parties disagree, the matter should go to the appropriate Deputy Director of Public Prosecutions for a final decision.

The policy on in-custody informers is being revised as part of a full review of the PPSC Deskbook now that the PPSC is an entity separate and distinct from the federal Department of Justice. The PPSC plans to post the revised Deskbook on its website.

British Columbia

British Columbia’s Ministry of the Attorney General issued a policy regarding in-custody informer witnesses on November 18, 2005, which was updated on Oct. 2, 2009:Footnote 268

Policy
The purpose of this policy is to avoid miscarriages of justice in cases involving in-custody informer witnesses.

As with other similar provincial policies, it includes an extensive list of factors to be considered when assessing the reliability of an in-custody informer witness. The policy makes clear that Crown Counsel should presume the evidence of an in-custody informer is unreliable “unless other evidence confirms the evidence of the witness and clearly addresses concerns about reliability.” Similar to other provinces, a committee process has been put in place, where prior approval of the committee is required to present the evidence of an in-custody informer.

Alberta

The Alberta Department of Justice and Attorney General released an updated In-Custody Informant Evidence guideline on May 20, 2008 regarding the procedure and criteria governing the use of in-custody informants. Similar to its 1999 predecessor, the guideline confirms that “[t]his kind of 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 a number of principles to consider when determining whether it is in the public interest, including the background of the witness, the feasibility and appropriateness of requesting the informer’s consent to a wiretap to attempt to confirm the information, the gravity of the offence, the repeated use of the same informer, confirmatory evidence, and the personal safety of the in-custody informer which “must underlie all decisions made by Crown prosecutors in their dealings with in-custody informers.”

The guideline refers to a number of factors to assist the Crown prosecutor in assessing the reliability of the informer as a witness prior to submitting the matter for review. If satisfied, the Crown prosecutor will refer the matter to an Outside Director, who considers the same factors in the determination of whether there is a compelling public interest in calling the informer as a witness. The guideline lists the materials to be submitted and considered by an Outside Director in a review. Any disagreement will be referred to the Assistant Deputy Minister, Criminal Justice Division for decision.

Agreements with in-custody informers should comply with the requirements of Alberta’s guideline regarding immunity agreements.Footnote 269

Complete disclosure must be made. The timing of disclosure remains within the discretion of the Crown prosecutor in accordance with the personal safety of the in-custody informer.

Alberta has an in-custody informer registry which tracks those who have previously requested and/or received from the Crown consideration in exchange for his or her testimony. Such information is an important factor in the Crown’s assessment of whether or not to enter into an immunity agreement with that person and in the assessment by the Crown, police and/or trier of fact of the reliability of the person’s testimony or information.

Saskatchewan

Saskatchewan issued a practice memorandum regarding in-custody informers, dated November 6, 2009. Its guiding principle is that in-custody informants “will only be tendered as prosecution witnesses where this evidence is justified by a compelling public interest, based on an objective assessment of reliability.”

To call an in-custody informant as a witness either at a preliminary inquiry or trial, the prosecuting Crown must obtain prior approval from the “In-custody Informant Witness Committee.” The Committee, comprised of three senior Crown trial prosecutors, the Executive Director of Public Prosecutions or the Director of Appeals, and the Regional Crown Prosecutor of the region submitting the referral, assesses the public interest and reliability criteria as set out in the practice direction to determine whether the informant can testify on behalf of the Crown.

Crown prosecutors must continually assess the reliability of the informant’s testimony throughout the prosecution. Where circumstances change (e.g., where the informant is charged with additional criminal offences prior to the completion of his or her testimony), the Crown prosecutor must resubmit the matter to the Committee for reconsideration. And, where a prosecution is based solely on the unconfirmed and uncorroborated evidence of an in-custody informer, the Crown prosecutor seeking to rely on it must ensure the Committee is aware of this fact and is advised to proceed cautiously.

The practice memorandum lists the factors to be considered by Crown prosecutors and the Committee as part of their assessment regarding whether the informant’s anticipated evidence is justified by a “compelling public interest.” Crown prosecutors are encouraged to consult with police to obtain the necessary information to address the factors they must consider. These include, but are not limited to, the following: confirmation, corroboration, the detail provided by the informant, the circumstances regarding how the alleged statement was communicated to the informant, any access to external sources of information accessible to the informant, any requests for consideration, the informant’s general character, previous attempts or claims by the informant to exchange information for consideration, previous reliability as an informant, any other known indicia that might diminish the credibility of the informant and safety issues.

The informant’s name and information will be entered into an In-custody Informant Registry by the police so that prosecutors and the Committee can access this information in future cases. Prosecutors should consult the registry and include any results in the information to be reviewed by the Committee.

The practice memorandum deals with the issue of consideration, notably that no consideration is to be offered in relation to any future or as yet undiscovered criminality of the in-custody informant, and police should deal with the informant regarding any consideration issues. Accurate notes of all dealings with the informant by the prosecutor and the police must be maintained. The memorandum also sets out the parameters regarding disclosure obligations.

The rationale for the memorandum is identified as:

Experience has demonstrated substantial risks to the proper administration of justice may arise from the use of in-custody or “jailhouse” informants as witnesses. Crown prosecutors must be aware of the dangers of calling jailhouse informants as witnesses and that such witnesses are not treated in the same manner as other witnesses…

In-custody informant evidence requires a rigorous, objective assessment of the informant’s account of the accused person’s alleged statement, the circumstances in which that account was provided to the authorities and the informant’s general reliability. Remember that judges will always be required to give a Vetrovec warning to juries to be cautious in their treatment of the evidence of a jailhouse informant.

A principal purpose of this policy is to help prevent miscarriages of justice, which can occur when jailhouse informants falsely implicate accused persons.

Manitoba

Since 2001, Manitoba has not called any in custody informers as witnesses. The Manitoba Department of Justice issued an In-Custody Informer Policy Directive on November 5th, 2001 which 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.”Footnote 270 The Manitoba Department of Justice drafted a new policy on disclosure in March 2008 in accordance with the Driskell Inquiry Report recommendations that “recognizes the suspect nature of the evidence of unsavoury witnesses generally.” Among other obligations, the policy refers to the obligation to disclose “all benefits requested, discussed, or provided or intended to be provided for any central witness, at any time, in relation to that central witness” as recommended by the Driskell Inquiry Report and clarifies that “benefits” should be interpreted broadly “to include any promises or undertakings, between the witness and the Crown, police or correctional authorities.”

The policy includes the following:

Copies of the notes of all police officers and corrections authorities who made, or were present during, any promises of benefits to, any negotiations respecting benefits with, or any benefits sought by the witness, should also be disclosed.

In consideration of the continuing Crown disclosure obligation, any information, relating to such a witness, that would raise doubts in regard to a conviction, or show the innocence of the accused, must be disclosed, whenever that information arises.Footnote 271

Ontario

The dangers presented by in-custody informers were targeted by the Ontario Ministry of the Attorney General as a major area of reform in 1998, resulting in a number of initiatives, including the creation of the Ontario In-Custody Informer Committee to review all in-custody informers proposed by the Crown as witnesses in criminal proceedings. A revised Ontario Crown Policy Manual was published in March 2006.

Today, the Ministry continues to refer cases to the In-Custody Informer Committee where the testimony of a jailhouse informer is sought by the prosecution. A senior Crown counsel appointed by the Assistant Deputy Attorney General serves as Chair of the Committee. The policy provides for a minimum of three Crown counsel to review each case, although in the majority of cases the Committee consists of five members to ensure a wide variety of independent opinions. The Committee includes representation from outside the region in which the trial is to take place and invites input from the defence on whether or not the Committee should approve the informer as a witness. The Committee applies a rigorous set of criteria and insists on a thorough and complete investigation of the credibility and reliability of the in-custody informer’s evidence.

Ontario maintains an In-Custody Informer Registry containing information relating to potential in-custody informer witnesses. This information is available to Crown counsel who wish to consider a particular in-custody informer as a possible witness in future proceedings.

The cumulative effect of the procedures in place since 1998 has resulted in a greater degree of screening and vetting by trial Crown counsel before applications are made to the Committee, as well as greater sophistication with respect to the applications made to the Committee. The process, and greater awareness of the dangers of relying on the testimony of these witnesses, has significantly reduced the number of in-custody informers called in Ontario.

The function of the In-Custody Informer Committee has evolved over the years. In addition to its duties in relation to the approval of informers as witnesses, it acts as an important advisory group and is considered a respected resource for counsel on evidentiary issues.

New Brunswick

The Department of Justice in New Brunswick issued a guideline entitled “Public Interest Agreements” in March 2003, stating: “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 a witness for the Crown.”

The process for deciding whether to call an in-custody informer includes a comprehensive assessment of the potential testimony. In difficult cases, a Senior Crown Prosecutor from an office not involved in the prosecution should assess the potential testimony against an established checklist of issues. Upon receipt of the 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 trial Crown is prepared to rely on the in-custody informer’s testimony for a conviction, the Regional Crown Prosecutor must be satisfied that a thorough and exhaustive review of the informer has been undertaken, that the evidence is credible, and that the public interest consideration is compelling. Ultimately, 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.

Newfoundland and Labrador

In October 2007, the Office of the Director of Public Prosecutions released its Guide Book of Policies and Procedures for the Conduct of Criminal Prosecutions in Newfoundland and Labrador. The section dealing with jailhouse informants refers to Commissioner Lamer’s conclusion that Commissioner Cory’s recommendations with respect to the use of jailhouse informants in the Sophonow Inquiry Report should be incorporated into the policy and practices of Crown Attorneys in Newfoundland and Labrador.

As a result, the present policy covers issues relating to credibility, the relationship between the informant and the police, approval for the use of jailhouse informants, and informant benefits. They are premised on Commissioner Kaufman’s recommendations in the Morin Inquiry, as adopted and expanded on by Commissioner Cory in the Sophonow Inquiry Report.

Also included are a number of “mandatory considerations” to guide Crown attorneys with respect to the use of a jailhouse informant in a given case, starting with a general rule that jailhouse informants should be prohibited from testifying. The considerations include examples of the types of rare cases in which a jailhouse informant may be permitted to testify. They outline the procedure police should follow when considering the use of this type of witness, and what to look for when reviewing the information provided by the prospective witness. If the intention remains to consider the jailhouse informant as a prospective witness, the testimony will only be admitted if it meets the requirements suggested by Commissioner Kaufman. In particular, the trial judge will have to determine on a voir dire whether the evidence of the jailhouse informant is sufficiently credible to be admitted, based on the criteria suggested by Commissioner Kaufman.

The guidelines point out that because of the unfortunate cumulative effect of alleged confessions, only one jailhouse informant should be used in a single case. In those rare cases where the testimony of a jailhouse informant is to be put forward, the jury should be instructed, with a very strong direction in the clearest of terms, about the unreliability of this type of evidence and the dangers of accepting it. 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.

After the Crown attorney has addressed the factors set out in the guideline and is satisfied that the informant evidence is credible, the Crown attorney can make a recommendation to the Director of Public Prosecutions that the informant be called as a witness. The DPP may, after consultation, form an ad hoc committee to consider the issues and make a recommendation. Ultimately, “no such witness may be called without the written approval of the DPP.”Footnote 272

Prince Edward Island

In November 2009, the Attorney General adopted a comprehensive Guidebook on the Conduct of Criminal Prosecutions. Included is a policy on In-Custody Informants which mirrors that of Newfoundland and Labrador.

Nova Scotia

In May 2004, Nova Scotia’s Public Prosecution Service distributed a policy document entitled “In-Custody Informers.” It was patterned on the Ontario policy and incorporated many of the Morin Inquiry recommendations.

The policy states that in-custody informer evidence “should only be adduced at trial where there are sufficient indicia of reliability and a compelling public interest in doing so.” Ultimately, an In-Custody Informer Committee will determine (by a majority of 4 out of 5) whether there is a compelling public interest to allow the in-custody informer to testify.

The policy refers to a number of principles to consider in determining whether there is a compelling public interest in relying on the evidence of an in-custody informer. Also included are a number of factors to consider in assessing the reliability of the in-custody informer as a witness.

The policy details the role, composition of, and materials to be submitted, to the Committee. It also reminds prosecutors of their “heavy onus” to provide complete disclosure about the informer. Any agreements made with in-custody informers relating to consideration in exchange for information or evidence must be fully documented in writing. As in other provinces, the point is made that the prosecutor who deals with the informer should not be the prosecutor who conducts the trial in which the informer testifies.

VI. Status of Recommendations

Great strides have been made in understanding the frailties associated with in-custody or jailhouse informers. This increased awareness – through continuing education and as a result of the policies and procedures that have been developed for the screening, vetting and limiting the use of in-custody informer information and evidence by police and prosecutors – has led to a dramatic decrease in the number of cases in which an in-custody informer will be permitted to testify. This causal connection reveals the importance of continuing education on this issue which, in turn, will undoubtedly go a long way to help prevent wrongful convictions in the future. Therefore, in-custody informer educational programming, policies, and protocols must be maintained across the country to ensure that in-custody informers will testify only in the clearest and rarest of cases where it is safe to rely on their testimony. Only this level of scrutiny can effectively reduce potential miscarriages of justice that may result from the use of this type of witness.

The police, too, have an important role in ensuring that unreliable evidence from in-custody informers does not contribute to a wrongful conviction. Various commissions of inquiry have been clear in concluding that all statements from in-custody informers must be treated with a high level of suspicion. Police must ensure that when an in-custody informer provides a statement, the most stringent protocols are in place to reduce the likelihood of introducing fabricated evidence to a judicial proceeding. Every police agency should have a policy that sets out the importance of treating the statements of in-custody informers with a high degree of suspicion because of their demonstrated skills in manipulation and the ulterior motives that may exist. The policy should also set out the steps that must be taken to attempt to assess the credibility of the informant and statement.

For example, a model policy should make clear that in custody informer statements must be carefully analyzed as to their internal consistency, their consistency with known facts, and the degree of confidence that the informer couldn’t have obtained “holdback” information from a source other than the suspect. (i.e., police must assess if it is truly unique hold back information.) In addition, the informer should be interviewed by an expert police interviewer. All opportunities to corroborate or discredit the statement must be vigorously pursued and the results of those efforts provided to Crown. Every opportunity to obtain the information provided by the informer from a reliable source should be explored, including using the informer as a police agent and seeking a covertly obtained taped statement from the suspect. Finally, it is preferable that rather than using the evidence of an in custody informer, police use an undercover police officer to seek admissions from the suspect in a “cell mate” operation if the suspect is in custody (this will generally be extremely difficult if not impossible except in a police lock-up situation), or an out of custody undercover operation.

Before submitting a statement from an in custody informer, the police agency should consider having the statement and all related investigative analysis critically reviewed by a person not connected to the investigation. This person should have extensive source handling experience and should regard his or her role as that of a “contrarian” (as described in the Major Case Management model) and put his or her mind to the questions of whether it is necessary to use this informant or are there safer alternatives.

If any statement of an in custody informer is provided to Crown, in addition to the steps summarized above, an analysis providing the following information should be submitted as well so Crown is able to make a fully informed decision as to whether the in custody informer should be allowed to give evidence:

It is also recommended that each province develop and maintain an in-custody informer registry. Presently, Ontario, British Columbia, Manitoba and Alberta have established and maintain in-custody informer registries. It is recommended that the other provinces and territories establish these registries in the near future. In this way, police and Crown attorneys who are considering the use of an in-custody informer will be able to access useful information to help in their assessment of whether or not to call the in-custody informant as a witness.

In addition to establishing provincial and territorial in-custody informer registries, it is recommended that strong links among the provinces be developed to ensure that police and Crown attorneys have access to any history of the informer, should it exist in another jurisdiction, to help in their assessment of whether or not to call a potential in-custody informant as a witness.

Each jurisdiction should appoint a contact person who will have access to its own registry and will contact the other jurisdictions to determine whether any information on the proposed witness exists elsewhere.

VII. Summary of Recommendations

In addition to the recommendations in the 2005 Report, the following recommendations are made by the Subcommittee:

  1. Police must ensure that when an in-custody informer provides a statement, the most stringent protocols are in place to reduce the likelihood of introducing fabricated evidence to a judicial proceeding.
  2. Every police agency should have a policy that sets out the importance of treating the statements of in-custody informers with a high degree of suspicion because of their demonstrated skills in manipulation and the ulterior motives that may exist. The policy should also set out the steps that must be taken to attempt to assess the credibility of the informant and statement.
  3. Before submitting a statement from an in custody informer, the police agency should consider having the statement and all related investigative analysis critically reviewed by a person not connected to the investigation.
  4. If any statement of an in custody informer is provided to a Crown prosecutor, an analysis providing the following information should be submitted as well so the prosecutor is able to make a fully informed decision as to whether the in- custody informer should be allowed to give evidence:
    • what consideration, if any, the incarcerated informant is requesting;
    • an exhaustive background investigation of the incarcerated informant;
    • the extent to which the intelligence is corroborated;
    • the amount of detail provided by the incarcerated informant, with particular attention given to unusual details, or lack thereof, and the discovery of information known only to the perpetrator;
    • the degree of access that the incarcerated informant may have had to external sources of information, such as media or police reports, Crown Counsel briefs and/or other sources;
    • the incarcerated informant’s general character, as evidenced by his/her past conduct known to the police;
    • any request the incarcerated informant has made, whether agreed to or not, for consideration in connection with providing the information;
    • whether the incarcerated informant has provided reliable information in the past and whether that information was utilized in previous investigations; and
    • whether the incarcerated informant has given reliable evidence in court in the past, as well as any judicial findings in relation to the accuracy and reliability of that evidence.
  5. Strong links among the provinces should be developed to ensure that police and Crown Attorneys have access to any history of the informant in another jurisdiction, to help in the assessment of whether or not to call the informant as a witness.
  6. Each jurisdiction should appoint a contact person who will have access to its own registry and will liaise with other jurisdictions to determine whether any information on the proposed witness exists.
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