Holding The Police To A Promise Of Confidentiality

Author:Mr Keith Geurts and Ellen M. Snow
Profession:Clyde & Co

Police officers may be held liable for substantial damages where the identity of a tipster is revealed in breach of a promise of confidentiality. That's what the Ontario Court of Appeal ruled in its recent decision in Nissen v. Durham Regional Police Services Board1,

In Nissen, the plaintiff had learned that the teenaged son of a neighbour had broken into another neighbour's home, stolen guns and, together with his brother, taken those guns to school and threatened other students. She claimed she provided this information to police only after gaining assurances from the interviewing officer that her anonymity would be protected. 

Ultimately, the two teenagers were arrested and charged with respect to the reported incident. As part of the Crown disclosure in the criminal proceeding, the identity of the plaintiff was disclosed along with a videotape of her police interview, the existence of which had been unknown to the plaintiff. Following this disclosure, the plaintiff was subject to threatening and harassing conduct by the boys' parents. Ultimately, she and her family sold their home due to the harassment and moved to another community. The plaintiff was also diagnosed with post-traumatic stress disorder ("PTSD"). 

At trial, the plaintiff's case was framed as an action for breach of informer privilege by the police. The trial judge accepted that the interviewing officer had assured the plaintiff that her identity would be kept confidential and that the failure to do so amounted to a breach of informer privilege. The trial judge awarded her damages for emotional and psychological injury in the amount of $345,000 and allowed claims for her family members under Ontario's Family Law Act for loss of guidance, care and companionship.

On appeal, the police service argued that the trial judge made an error of fact in finding that the plaintiff had been promised confidentiality by the interviewing officer but that, in any event, the trial judge erred in his consideration of the necessary elements of a claim for damages for breach of informer privilege. The police further argued that the awarded damages were excessive.

The court rejected the argument that the trial judge made an error of fact, concluding that there was no basis to interfere with the finding that the plaintiff had been promised confidentiality as it was grounded in the trial judge's assessment of the plaintiff's credibility and reliability as a witness, which is ultimately entitled...

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