Informer Privilege Gives Rise To A Private Law Duty Of Care

In the landmark February 2015 decision, Nissen v. Durham Regional Police, 2015 ONSC 1268 (Nissen), the Ontario Superior Court established a private law duty of care in an informer privilege matter. In its decision, the Court awarded $345,000 in general and $115,000 in loss of guidance, care, and companionship damages to plaintiffs Chad Nissen and Margaret Stackas a result of the Durham Regional Police force’s failure to preserve Ms. Stack’s anonymity.

In Nissen,the Court was asked to determine whether Ms. Stack, a confidential police informant, had a civil cause of action against the police if her informer privilege was breached.

In this case, the Durham Regional Police force’s duty to protect Ms. Stack’s identity from disclosure arose from Ms. Stack’s agreement to disclose a rum our she had heard regarding guns stolen by the teenage sons of her neighbors, the Ellisons, in exchange for the “absolute”promiseof a Durham Regional Police Officer that she would never be identified. Ms. Stack had not been told that her police interview was being videotaped. The lawyer of the accused teens subsequently obtained the videotaped interview with Ms. Stack from the Crown through disclosure and the tape was viewed by the Ellison family.

Mr. Ellison reacted very vindictively after viewing the videotape. His aggressive reaction escalated quickly from threatening comments to violently attempting to run Ms. Stack over with his truck.

The police were informed of the harassment by Mr. Nissen and Ms. Stack, but refused to take any action against Mr. Ellison. Ms. Stack testified that Mr. Ellison’s harassment became so unbearablethat she and her family were forced to move. During this time, Ms. Stack was also diagnosed with post-traumatic stress disorder.

The Court found that it is clear that informer privilege arises if information is provided to the police in exchange for a promise of confidentiality as was the case here. The resulting duty of care is to protect his or her identity from disclosure.

In Nissen, the Court concluded that Ms. Stack had a civil cause of action against the police for the breach of her informer privilege on the grounds that there is sufficient proximity between Ms. Stack and the Durham Regional Police to give rise to a duty of care. The Court also held that no residual policy considerations existed that should negate that duty of care.

The Ontario Superior Court’s decision in Nissen establishes that informer privilege can give rise to a private law duty of care.