Application of the Police Informer Privilege to the Syndic of a Professional Order
Recently, in the matter of Bilodeau v. Directeur des poursuites criminelles et pénales1, the Quebec Superior Court pointed out that while the powers of the syndic of a professional order are extensive, they are not limitless. For certain exceptions to the rules of evidence apply to those powers and prevent the syndic from having access to all the documents it may require. This is the case in particular with the police informer privilege, whereby the informer’s identity cannot be revealed, whether in civil, criminal, penal or administrative proceedings, or during a preliminary inquiry or testimony at trial.
In this matter, the syndic of the Quebec Bar applied to the Superior Court for a declaratory judgment in order to determine if the police informer privilege could be set up against its syndic. The syndic was seeking to obtain, from the Director of Criminal and Penal Prosecutions (the “DCPP”), information and documents necessary for the exercise of its jurisdiction and mandate.
The facts underlying the application can be summarized as follows: a lawyer against whom a complaint had been filed had been declared disqualified to act in a criminal matter before the Court of Québec, because of a conflict of interest. Shortly thereafter the DCPP filed a request with the syndic of the Quebec Bar, asking it to conduct an investigation into the lawyer’s conduct. Following the investigation, the assistant syndic concluded that no disciplinary complaint would be filed.
Pursuant to section 123.5 of the Professional Code2, the DCPP filed an application asking the Quebec Bar to review the assistant syndic’s decision. In its opinion, the Review Committee recommended to the assistant syndic that it complete its investigation regarding the concept of “conflict of interest” as it applies to the concept of “police informer privilege”. In order to act on the Review Committee’s recommendation, the assistant syndic asked the DCPP to provide it with the evidence led during the hearing before the Court of Québec on the application for a declaration of disqualification of the lawyer in question.
The DCPP refused to comply with the assistant syndic’s request, on the grounds that it was unable to disclose information that could reveal the identity of a police informer.
The Superior Court first examined the nature and scope of the police informer privilege, before determining whether it could be set up against the assistant syndic of the Quebec Bar.
The police informer privilege is a rule of public policy to which there is but one exception, i.e. where it is necessary to establish the innocence of an accused. When an accused wishes to use the identity of a police informer to establish his innocence, he must demonstrate the seriousness of his position. The Court must then weigh the importance of this disclosure for the accused against the public interest in non-disclosure of the informant’s identity.
The obligation to keep a police informer’s identity confidential applies to everyone, and breaching it can lead to disciplinary measures or a claim for damages.
The police informer’s privilege protects the informant’s anonymity and any information capable of identifying him or her. It does not however apply to the content of statements he or she made to the police. That content can be shared and entered into evidence if doing so would not allow the informant to be identified.
The Superior Court concluded that the police informer privilege is absolute. Once it is established that the privilege applies, the Court has no further discretion. It must protect the informant’s identity, even from a syndic, despite the latter’s broad investigatory powers under section 122 of the Professional Code and its oath of confidentiality regarding the investigation file.
According to the Court, as the instant matter did not involve establishing the innocence of an accused, no exception was available. The police informer privilege automatically applies, and its application cannot be decided on a case-by-case basis. It can consequently be set up against the syndic of a professional order. The Court noted moreover that even if the requested information were disclosed to the syndic, it would be of little use, as it would constitute inadmissible evidence.
This decision is noteworthy given the exception it applies to the broad investigatory powers of a syndic recognized by the Supreme Court of Canada in Pharmascience Inc. v. Binet3. In that landmark decision, the Supreme Court acknowledged the syndic’s right to obtain all information necessary for the purposes of its inquiry and for making a decision whether or not a disciplinary complaint should be filed, regardless of whether the information is in the possession of the professional under investigation or a third party.
By dint of its role as the enforcer of discipline within a professional order, the syndic is a key constituent of the order. While its powers may in exceptional cases be reduced, it is important that it has the benefit of as much information as possible in order to allow it to effectively accomplish its mission of protecting the public.
1 2018 QCCS 5584. Notice of appeal, 2019-01-10 (C.A.) 200-09-009927-192.
2 CQLR, c. C-26
3 2006 SCC 48