Defence counsel do not fall within the “circle” of informer privilege — the group of people who are entitled to access information covered by informer privilege and who are bound by it.

Traditionally, this circle is tightly defined and has only included the confidential informer himself or herself, the police, the Crown and the court.

R. v. Brassington, 2018 SCC 37, at para. 41;

R. v. Barros, [2011] 3 S.C.R. 368, at para. 37. 

In all cases where informer privilege applies, disclosure outside the circle requires a showing of “innocence at stake”.

R. v. Brassington, at para. 47.

Thus, solicitor-client privilege, which protects the client’s communications with counsel from disclosure and compulsion, does not provide a basis for that client to communicate information that is otherwise protected from disclosure if it tends to identify a confidential informer.

R. v. Brassington, at para. 48.

Stuart O’Connell, O’Connell Law Group, (all rights reserved to author).