In criminal investigations and trials, it is not uncommon to see the involvement of confidential informants or police agents. Confidential informants, in particular, are commonly used as sources of information that can lead to search warrants being obtained by police for drug trafficking allegations. Police agents are most commonly used in organized crime investigations.
Though any linkage has been denied, there are some emerging facts which are causing reasonable people to wonder whether the mass casualty gunman, Gabriel Wortman, had some relationship with the police, as either an informant or an agent.
Wortman had a history of cross-border weapons and drug smuggling. His friend that made the RCMP decals for him has been linked with a Mexican drug cartel. While the killing spree was still ongoing, this same friend was reportedly evacuated from his home by the RCMP before children who were hiding in a basement were rescued. The RCMP called in other RCMP units rather than close by municipal police forces. Previous complaints to the RCMP about guns and domestic violence were seemingly ignored. In addition, Wortman withdrew a large amount of cash from a Brinks depot weeks prior to the shootings, in a manner that has been described as how undercover operators might behave.
That has all lead some to speculate that he may indeed be an agent or informant, and that the police are just not telling us. If that is the case, the question becomes whether we will be able to find it out during the MCC hearings, or whether there is something that would allow the State to keep that a secret.
I will explain why I say yes, we should find out, but first there is an important distinction to discuss between being a confidential informant and a police agent.
The difference between being an “agent” or an “informant” is whether you have taken direction from the police in obtaining the information you are providing. Someone who buys drugs and then tells police is an informant, while someone who plans a drug buy with police assistance is an agent. The difference is important, as there are different protections provided by the Courts, depending on which label is applicable.
This dynamic usually plays out in the context of a criminal trial, and the legal framework that has developed around the question is not entirely well-suited for an inquiry scenario. Confidential informants are used in criminal investigations to justify search warrants being issued. Their information can be relied upon to grant search warrants if it is compelling, credible, and corroborated by police investigation. Credibility is difficult to assess, but if the source has provided information on other occasions that has lead to arrests and convictions, they are more likely to be seen as reliable.
The Supreme Court of Canada has said that informer privilege is “near absolute”, so the identification of a confidential informant is effectively prohibited. The only exception is a narrow one. If the accused person’s innocence is at stake, and there is no other option but to reveal the source, then the person’s identity can be revealed. In practice, however, whenever that point is reached, the Crown will withdraw or stay the charges, rather than reveal the name.
This informer privilege even continues after someone is dead. The logic behind that is that it will protect family and friends of the informant, and also that it encourages people to come forth by keeping privilege “near absolute”. There has been American jurisprudence to say that this is limited where there is no longer any danger to anyone who might be exposed, but that has not been adopted in Canada as of yet, though certainly in the context of an Inquiry like the MCC I would expect that an exercise in balancing the benefits and potential harms of revealing the gunman as an informant would favour publicizing the fact that he was an informant, if he was.
An inquiry context certainly changes some parts of the equation. British Lord Justice Salmon has stated that “it is of the greatest importance that hearings before a Tribunal of Inquiry should be held in public. It is only when the public is present that the public will have complete confidence that everything possible has been done for the purpose of arriving at the truth …”
Calling off the MCC because someone was an informant would certainly not be justifiable, so there would need to be another approach taken, one that provides protection for sources, but also allows the hearings to continue.
Previous federal judicial inquiries provide some insight into how that might be addressed. One option that has been used is a partial publication ban, which is often used for children, victims of sexual abuse, sensitive financial information, or to preserve the right to a fair trial.
Another option is limited use of in camera hearings. In the Air India Inquiry, and also in the Mahar Arar Inquiry, national security issues had to be addressed by the Commissioners. In the Arar Inquiry, Commissioner O’Connor held in camera hearings, after which he issued reports that could be released publicly. The federal government at the time was so worried about what would be revealed that they even applied to court to have these summary documents amended to remove information. Commissioner O’Connor indicated that this issue was a struggle, made worse by the fact that the government over-claimed national security confidentiality.
We have already seen similar issues in the process to review the search warrant documents in this case. Even though these documents are supposed to be public by default, media organizations have had to go to court to have redacted portions of documents disclosed. We can expect the same approach during the MCC hearings. If Wortman was a confidential informant, it is going to be difficult for us to find out.
Ultimately, however, I would expect that if he were an informant, we would have to be told. The MCC could initially hold some in camera hearings to determine who (if anyone) might be at risk should that status become public knowledge, and whether there are steps that should be taken to protect those people. There may also be limits to how far the Commissioners will allow questions to be asked on the topic, but the fact itself (if it is a fact) would have to be disclosed.
If, rather than an informant, he was a police agent (a conclusion which seems to fit better with the emerging facts), we should hear all about it during the MCC hearings. An agent is someone who acts on direction from the police, and their identity is disclosable, according to our Supreme Court.
Criminal trials are, again, where this normally arises, and the distinction between an agent and an informant is taken from the perspective of the defendant. If the defendant confesses a crime to someone, who then tells that to the police, the accused’s Charter rights (particularly the right to silence) are not engaged in the same way as they would be if the police sent someone in with a recording device and a plan to extract a confession. In such a matter, it would be important for the defendant to know whether the witness was a police agent.
How might this play out at the MCC? If Wortman was either an informant or an agent, that disclosure should already have been made by the RCMP to the MCC and the other parties. Then, it would be up to the Commissioners to determine whether any limited in camera hearings were needed to discuss protection measures. Given that we are nearly two years out from the shootings, there should not be any active investigations whose integrity would need protecting.
If the MCC wants the public’s “complete confidence”, this all needs to be either revealed, or else dismissed in a manner that gives the public confidence that there are other compelling explanations for the series of emerging facts that suggest a connection between Wortman and the police.