Issues in CI Litigation: Balancing Informant Privilege with the Right to Full Answer and Defence

A large number of search warrants in serious criminal cases rely on information derived from confidential informants. The court and the Crown have an obligation to protect the identity of the informant. This task has to be carefully balanced with the corresponding right to full answer and defence. Courts must be prepared to adopt a flexible approach to disclosure. Two tools have recently emerged in the caselaw that seek to strike this balance – the drafting of judicial summaries and exparte in camera proceedings. This paper further discusses current issues in informant litigation including the relevant distinctions between an agent and informant and defence efforts at piercing the privilege when innocence is at stake or fabrication of the informant is alleged.