Procedures for reconciling the interests involved in cases where informer privilege exists are the subject of Canadian Broadcasting Corp v Named Person, 2024 SCC 21.
My summary in the following paragraphs does not adopt all the terminology used by the Canadian court, in order to point to general relevance.
Once an informer’s privilege is established, [1] it is absolute (that is, non-discretionary). It applies to prevent publication of information concerning the identity of the informer and information that could jeopardize the informer’s safety [42]. [2]
The public interest in not discouraging people from assisting the police in the investigation of crime, and associated interests supporting informer privilege [35] can be in conflict with the principle of open justice, which is aimed at promoting public confidence in the integrity of the judicial system [29]. The former must take precedence [42]. Therefore, when it is necessary to exclude the public and the media from those proceedings where privileged information about an informer is revealed, there must be as much openness as is possible and the existence of the in camera (or “parallel”) proceedings must not be concealed [74]-[81].
When a decision has to be made about whether to hold proceedings in camera, the judge must have a discretion to alert potentially interested third parties who may wish to make submissions on the issue [55]. The rights of the media to seek judicial review of a confidentiality order must be respected as far as is possible [81].
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[1] There will usually be statutory criteria to satisfy before informer status is established. For example, the Evidence Act 2006 [NZ] defines who is an informer in s 64(2), but the privilege may be disallowed in certain circumstances, set out in s 67 (which applies to the other privileges too, except the privilege against self-incrimination.)
[2] The New Zealand provision, s 64(1), only covers the informer’s identity. See Wright-Meldrum v R [2022] NZCA 649 at [31], [35]-[36]. As to undercover officers, intelligence officers and anonymity orders generally, see the Criminal Procedure Act 2011 [NZ], ss 84, 91, 94.
