Openness about protection of informers: Canadian Broadcasting Corp v Named Person, 2024 SCC 21

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.

Defence against provoked assault: Dayney v The King [2024] HCA 22

Sometimes, the clarity of a court’s exposition of a statutory provision makes one wonder why the legislation drafting office couldn’t come up with such clarity in the first place.

For example, see Dayney v The King [2024] HCA 22, at [1] and [26], referring to the third clause of s 272(2) of the Criminal Code (Qld).

Funnily enough, s 272(2) has some similarity to s 49(b) and (c) of the Crimes Act 1961 [NZ], provisions which were repealed on 1 January 1981.

From that date self-defence (and defence of another) has been governed solely by s 48.

Section 48 has been the victim of changing fashions in pronoun use,[1] its original and in my opinion more elegant version having used only the male pronoun. Even now, when we have so many more genders, the current s 48 seems somewhat old-fashioned.

But aside from that, s 48 is a justification, whereas the Queensland provision is merely an excuse. If the defendant provoked the assault, the use of force in self-defence or in defence of another may nevertheless be reasonable.[2]

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[1] You can have fun with de-pronouning legal writing; see my note here on 10 July 2014.

[2] Compare R v Rashford [2005] EWCA Crim 3377 at [19], Simon v R [2016] NZCA 449 at [18], R v Keane; R v McGrath [2010] EWCA Crim 2514, Zecevic v DPP (1987) 162 CLR 645 at 663. The defendant’s role in the incident is referred to in s 34(2)(c) of the Canadian Criminal Code, and see R v Khill, 2021 SCC 37.