Chapter 5 - Jailhouse Informers

I. Introduction

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. 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.

Widespread recognition of their unreliability has grown in the aftermath of public inquiries into wrongful convictions where jailhouse informers figured prominently (e.g., Morin, Sophonow, Dalton/Parsons, Druken, Driskell).

The recommendations by these inquiries have 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.^{Footnote 159}

In addition, as a result of the inquiries, with the exception of Quebec, federal and provincial prosecution services have implemented policies and guidelines on the use of jailhouse informers with stringent conditions regarding their use. In Quebec, these recommendations were considered in the development of its Guidelines which govern the use of all collaborating witnesses, including jailhouse informers.

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. 2011 Recommendations

In addition to the recommendations in the 2005 Report, the following recommendations were 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.

IV. In-Custody Informer Policies Currently in Place

With the exception of Quebec, all provincial prosecution services have issued policies and guidelines on the use of in-custody informer evidence in response to the Morin and Sophonow Inquiries. Some, but not all of these, have been updated since the 2011 Report.

Public Prosecution Service of Canada

The PPSC’s policy in relation to in-custody informers is found in the PPSC’s Deskbook, Part III, 3.3, 7 with updates as of March 1, 2014. The chapter recognizes that the use of in-custody informers has been identified as a significant contributing factor in cases of wrongful convictions.^{Footnote 160}

The policy specifies that after careful scrutiny and being satisfied that the informer evidence is credible, it should be recommended to the Chief Federal Prosecutor (CFP) that the informer be called as a witness. If the CFP believes it is an appropriate case for use of the informer, the CFP should seek the advice of the Major Case Advisory Committee before making a final decision. Should the Committee and the CFP disagree, the matter should be directed to the appropriate Deputy DPP for a final decision.

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 and further updated on April 13, 2015.^{Footnote 161}

As with other 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.

On March 1, 2018, the British Columbia Prosecution Service released its new policy manual. The chapter on In-Custody Informer Witnesses is essentially the same as the chapter contained in its 2015 policy manual.^{Footnote 162}

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 informers.^{Footnote 163} 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.

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.^{Footnote 164} 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 Assistant Deputy Attorney General - 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

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 165} 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.”^{Footnote 166} 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.

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 in 1999 of the Ontario In-Custody Informer Committee to review all in-custody informers proposed by the Crown as witnesses in criminal proceedings. Ontario’s current policy on in-custody informers came into force on November 14, 2017 and forms part of Ontario’s new Crown Prosecution Manual.^{Footnote 167} 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. 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. There must be a compelling public interest to tender evidence from an in-custody informer.

Ontario also maintains an In-Custody Informer Registry. Information from the registry is available to the Committee so that repeat would-be informers can be identified. 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 existence of the Committee and approval process has resulted in greater awareness of the dangers of relying on the testimony of these witnesses.

The focus of the In-Custody Informer Committee is the approval of informers as witnesses. However, one of the beneficial by-products of the process is that the committee is often able to offer advice or observations in relation to other trial issues, such as trial tactics.

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.”^{Footnote 168}

Effective September 1, 2015, the Department issued its policy on in-custody informant evidence contained in its Operational Manual (Chapter V - Witnesses and Victims).^{Footnote 169}

The procedure for deciding whether to call an in-custody informer includes a comprehensive assessment of the factors going to the informer’s reliability and their potential testimony.

Where, upon thorough review, the Crown Prosecutor believes that the in-custody informant’s evidence is reliable and use of it is in the public interest, the Crown prosecutor shall prepare and submit a report to the Regional Director or the Director of Specialized Prosecutions, as the case may be, for review.

Where the Regional Director or the Director of Specialized Prosecutions, as the case may be, agrees that the in-custody informant’s evidence is reliable and use of it is in the public interest, the Regional Director or the Director of Specialized Prosecutions, as the case may be, shall obtain approval from the Director of Public Prosecutions.

If there is any significant change of circumstances throughout the course of the prosecution, the Crown Prosecutor shall consult the Regional Director or the Director of Specialized Prosecutions, as the case may be, to discuss whether the matter should be reassessed.

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.^{Footnote 170} 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.”

Prince Edward Island

In November 2009, the Attorney General adopted a comprehensive Guidebook on the Conduct of Criminal Prosecutions.^{Footnote 171} 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.”^{Footnote 172} 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.

V. Legal Developments and Commentary

In the United States, there has been renewed controversy in recent years on the use of jailhouse informers.

The National Registry of Exonerations^{Footnote 173} reports that eight percent of all exonerees in the Registry were convicted in part by testimony from jailhouse informers, 119 out of 1,567. They are concentrated among the worst crimes: 102 out of 119 are murder cases, 15%, of all murder exonerations, compared to 2% of all other exonerations (17/900). Among murders, the more extreme the punishment, the more likely we are to see a jailhouse informer, ranging from 23% of exonerations with death sentences to 10% of murder cases in which the defendant received a sentence less than life in prison.

Loyola Law professor Alexandra Natapoff, one of the U.S.’s leading experts on criminal informers, said lawmakers “from Texas to Montana to New York, are considering and passing bills to better regulate the use of compensated criminal witnesses.” She wrote:

It has become an article of common sense that if the government is going to pay its criminal witnesses for evidence and testimony, it should have to keep track of them, their histories and those rewards—and disclose that information to the defense.

Texas has been a leader in this regard, passing comprehensive new requirements in July. Such reforms are driven first and foremost by the fear of wrongful conviction: Compensated witnesses hoping to gain their own freedom obviously have strong incentives to lie.

Better tracking and disclosure also strengthen the integrity of the adversarial system. These new state laws are an important effort to level the adversarial playing field and improve its accuracy as well as its integrity.

Lots of states are going further, however. They are rethinking not just what the government should disclose about its informants but under what circumstances it should be permitted to use them at all.^{Footnote 174}

Natapoff went on to describe the spectrum of proposed and adopted laws focused on reforming practices around “incentivized informants,” including:

• Legislation that sets limits on the extent of benefits that informers can receive in exchange for information;
• Senate Bill 249 in Montana which introduced “comprehensive legislation that would require, among other things, electronic recording of informers’ statements, greater prosecutorial disclosure, pretrial reliability hearings, and cautionary jury instructions;” and
• An Illinois bill that requires pretrial hearings for all jailhouse informers.

“This wave of new reform has been a long time coming,” wrote Natapoff. “The innocence movement warned us for years that criminal informants are a leading cause of wrongful conviction…Almost every week brings a new media story about an informant case gone awry. Criminal informants have historically been secretive and under-regulated; today, this problematic law enforcement practice is getting its much-deserved day in the sun.”^{Footnote 175}

In 2014, a highly publicized controversy unfolded in Orange County, California regarding the use of jailhouse informers. The prosecutor and sheriff’s offices were accused of running a secret jailhouse informers program for over 30 years, failing to disclose key information to defense attorneys and lying about it in court. Some informers were allegedly paid hundreds of thousands of taxpayer dollars to elicit confessions from inmates. In response, District Attorney Tony Rackauckas assembled a group of lawyers independent of his office and a retired judge to examine the office’s policies and practices on the use of jailhouse informers. The committee, the Informant Policies & Practices Evaluation Committee (IPPEC), made 10 recommendations and concluded:

What also became clear during the evaluation was that, in many ways, the OCDA’s Office functions as a ship without a rudder… In short, the office suffers from what is best described as a failure of leadership. This failure appears to have contributed to the jailhouse informant controversy. The management in the office was unaware of the caseloads, use of jailhouse informants, and discovery challenges of Deputy District Attorneys in the Target, Gang, and Homicide Units. The lack of oversight of these serious cases led to repeated legal errors that should have been identified and rectified by management long before the problems reached the current scale.^{Footnote 176}

In 2009, Texas became one of the first states to regulate testimony from jailhouse informers by prohibiting the conviction of defendants based solely on jailhouse informers’ testimony without corroborating evidence.^{Footnote 177}

But in September 2017, new legislation took effect, which was hailed by the New York Times as “the most comprehensive effort yet to rein in the danger of transactional snitching.” The bill came from a list of recommendations presented to the Texas Legislature by the Timothy Cole Exoneration Review Commission, formed in 2015 to review cases in which convicted defendants were exonerated. It requires prosecutors to track and disclose to defence key information and establishes strict record keeping guidelines for their use - who they are, what they told and what they got for telling.

Under the new law, prosecutors are required to disclose a jailhouse informer’s complete criminal history, including any dismissal or reduced charges as part of a plea bargain. As well, any leniency or special treatment given in exchange for the testimony also must be disclosed, along with information about other cases in which the informer had testified or offered to testify against another jailed defendant. ^{Footnote 178}

In Canada, it is not surprising that a review of case law since the 2011 Report has shown that jailhouse informers as a category of witnesses continue to be seen as inherently unreliable. Moreover, in the few cases where jailhouse informers are being used, in addition to the courts’ general recognition of their unreliability, judges are taking extra effort in scrutinizing their testimony (Vetrovec, Khela).

In the recent Manitoba case of R. v. Richard,^{Footnote 179} the accused was charged and convicted of second degree murder. The Crown tendered the evidence of a jailhouse informer who was detained at the same jail as the accused shortly after his arrest and detention. The informer testified that the accused admitted to him committing the offence and provided specific details of the killing that, seemingly, would have been information only the perpetrator of the offence would have possessed. The accused testified and, interestingly, stated that he did have the conversation with the informer as described by him. Essentially, the only difference between their testimony was that, according to the accused, the details he provided to the informer was information provided by the police during his interrogation when he was arrested. He also denied admitting to the informer that he had committed the murder.

In her assessment of the informer’s testimony, the trial judge stated she found the informer “forthcoming and sincere” and “…that most of his evidence about his meeting with Mr. Richard was confirmed by Mr. Richard’s testimony. As well, there was no evidence that (the informer) was offered money or other incentives for his evidence, with the written agreement he entered into with the Crown three days before this trial simply providing for his commitment to tell the truth and noting that he had not received any benefit for doing so.”^{Footnote 180}

At the outset of her assessment of the informer’s evidence, the judge also emphasized the importance of applying special scrutiny and cited the seminal decisions of Vetrovec and Khela. She stated that “…jailhouse informers such as Arnold are almost invariably motivated by self-interest and have little respect for the truth.” She also stated, “Furthermore, as Arnold is a jailhouse informer, I must, in assessing his evidence, consider the factors that the courts have held are of assistance in determining his reliability or lack thereof (Brooks, para 82).”^{Footnote 181}

After applying the above principles, and despite the confirmatory evidence supporting the informer’s evidence, the judge did not accept his evidence of the admission from the accused. She cited specific concerns related to the informer’s contact with another witness and concluded, “Given the extent of Arnold’s contact with Neil and their apparent attempt to minimize it, Arnold’s criminal background and the general caution I must exercise when considering the testimony of a jailhouse informer, I reiterate that I do not accept his testimony about Mr. Richard’s admission.”^{Footnote 182}

In R. v. J.J.G.,^{Footnote 183} the youth accused was charged with the second degree murder of an infant. The Crown tendered evidence of a jailhouse informer to whom the accused had allegedly made incriminating statements while in custody at a youth detention facility shortly after the accused was arrested. The Crown conceded that the evidence of the informer was necessary for the Court to be satisfied beyond a reasonable doubt of the accused’s guilt.

In assessing the informer’s evidence, the trial judge stated:

It is common ground that C.L. is a Vetrovec witness and consequently I must assess his reliability with extreme care, and in so doing must search in the evidence for confirmatory evidence which is material and independent of C.L. to assist in determining whether C.L.’s evidence is reliable. During the same search, I must be alive to the presence of contradictory evidence, if any. I do so caution myself and will proceed accordingly.^{Footnote 184}

The Court described the informer as having a “plethora” of problems going to his credibility and reliability and outlined several.^{Footnote 185}

The Court also stated:

The Court must always be concerned in jailhouse informant cases, and I am also concerned about it here, that a person in C.L.’s situation may have some personal motive, something to be gained from testifying in such a case. It is clear that there is no evidence of a deal having been made, of a quid pro quo or an agreement with law enforcement authorities that he will benefit in some way. C.L. also denied that he was expecting anything. However, he also testified that he had taken it upon himself to question the accused, having heard the rumour of what he was charged with. He said, “I just took it upon myself to tell the right people and deal with this as well as I could’ve.”^{Footnote 186}

The judge went on to state, “Let me be clear, for the reasons I have already stated, I will accept nothing that C.L. says as truthful, unless I am satisfied that it has been confirmed by independent and material evidence.”^{Footnote 187}

With the above principles in mind, the Court thoroughly reviewed the evidence and, coupled with the mental health and age of the accused, found the informer’s reliability to be of “dubious” value and acquitted the accused.^{Footnote 188}

These cases serve as examples of the courts’ recognition of jailhouse informers’ inherent unreliability and also demonstrate the diligent and careful scrutiny being applied by judges in assessing their evidence.

Although this Subcommittee has not done an in-depth search of cases comparing the use of jailhouse informers before and after the publication of our last report in 2011, it appears jailhouse informers are still being used, but more sparingly.

VI. Updated Recommendations

In light of the above, the Subcommittee considered recommending an outright ban on the use of jailhouse informers. However, the danger associated with the use of jailhouse informers was balanced against the reality that there are certain measures available to address reliability concerns and such witnesses can sometimes offer highly probative evidence. Despite obvious inherent reliability concerns, jailhouse informers may still be called to give evidence but there should be a compelling public interest to warrant such testimony.

A case in point is R. v. Bailey.^{Footnote 189} While this case is an example where the lower court did not apply careful scrutiny of a jailhouse informer witness, ironically, the lower court’s lack of scrutiny likely impacted positively on the accused.

In Bailey, the accused was convicted of first degree murder. The three accused entered the victim’s residence intending to rob the victim. The victim was taken into the basement by two of the robbers and was shot in the head. The verdict turned on whether the Crown could prove that the appellant was the shooter. The Crown had called a witness/jailhouse informer who testified about incriminating comments made by the appellant while sharing a cell with him.

The accused appealed the conviction. The grounds of appeal included an alleged misdirection to the jury arising from the trial judge’s instruction on eyewitness identification and the inadequacy of the Vetrovec instruction.

The appellant’s appeal was granted on the first ground, however, writing for the Ontario Court of Appeal, Justice Doherty commented on the Vetrovec instruction.

The trial judge’s instruction on this issue was:

“Common sense tells you that in light of those circumstances there is good reason to look at Mr. Whissel’s evidence with the greatest care and caution. You are entitled to rely on Mr. Whissel’s evidence even if it is not confirmed by another witness or other evidence, but I would suggest it is dangerous for you to do so.”^{Footnote 190}

Justice Doherty noted it would have been better for the trial judge to specifically explain why it was dangerous. However, he went on to state:

As I would reverse on the eyewitness identification instruction, I need not decide whether the failure to explain to the jury why it was dangerous to rely on Whissel’s evidence constituted reversible error. I note that the Vetrovec instruction was vetted with counsel and there was no objection taken. I also observe that had the trial judge given a more detailed explanation for the reasons behind treating Whissel`s evidence with caution, he could also have given a more detailed review of the evidence in this case capable of supporting the contention that Whissel was not a typical ``jailhouse informant``. He had only a minor criminal record, did not appear to be part of any criminal subculture, had no history of testifying for the Crown, and little, if anything, to gain when he gave his statement to the police, or, when he testified. A more thorough review of the pros and cons relevant to the assessment of Whissel`s credibility may not have helped the defence.^{Footnote 191}

This case serves as an example of the widespread recognition by the courts of the dangers associated with jailhouse informers, yet also illustrates the benefits these witnesses can occasionally offer to a case and the fact that even within this category of witness, reliability concerns can vary. 

Applying a balanced approach, the Subcommittee therefore decided not to recommend an outright ban on the use of jailhouse informers.

As well, further consideration was given to strengthening the stringent conditions used in the federal/provincial prosecution guidelines by applying “a presumption of inadmissibility” consistent with the language and principle used by Justice Moldaver in Hart and the admissibility of Mr. Big confessions.

However, while jailhouse informers and Mr. Big confessions have similar reliability concerns, the use of the presumption in the Mr. Big context is well justified given the central role of the state in eliciting the confessions and the absence of other safeguards that would normally apply when a confession is given to a person in authority (e.g. the confessions rule and the Charter). It is the view of this Subcommittee that a presumption of inadmissibility is not required in the federal and provincial prosecution guidelines.

The Subcommittee believes that the current prosecution service policies, coupled with Canada’s more stringent disclosure rules and the strict scrutiny by Canadian courts of the use of jailhouse informers, are sufficient to address the concerns raised by various commissions of inquiry.

In the 2005 Report, this Subcommittee recommended the establishment of provincial and national in-custody informer registries. The 2011 Report further emphasized the development of strong links among the provinces to ensure police and Crown attorneys have access to the history of the informer in other jurisdictions to help in the assessment of whether to call the informer as a witness.

To date, British Columbia, Alberta, Saskatchewan, Manitoba, and Ontario have such registries. The Subcommittee reiterates this recommendation and urges those jurisdictions without such registries to establish them.

Despite the significant advances in our understanding and education on the problems and concerns with in-custody informers, it is important we continue our vigilance in limiting their use in only the clearest of circumstances. By implementing provincial and national registries, we can better attain our goal by providing a fuller history of the informer and preventing miscarriages of justice.