KEEPING SECRETS: SURVEILLANCE POST PRIVILEGE

Abstract

Location or surveillance post privilege is designed to protect surveillance operations where knowledge of the locations, techniques and equipment used would educate criminals about how to avoid future surveillance; educate third parties about how to conduct illegal surveillance; frustrate future similar surveillance activities; and pose risks to individuals conducting surveillance or those allowing the use of their facilities.1 While the privilege is based on two centuries of jurisprudence regarding the protection of informants, it is a relatively new application of the rules regarding informants. The privilege is, however, qualified and not absolute. As a result trial courts have a great deal of discretion in determining the scope of the privilege – balancing the accused’s right to full disclosure and to adequately cross-examine and confront witnesses with the public interest in maintaining secrecy and effective law enforcement. While the ultimate focus is on Canadian law, the author starts with English precedent through New Zealand, Australia, and the United States before ending with Canada. As the rule is fairly consistent across the Commonwealth with Canadian courts adopting US precedent which in turn was built on earlier English precedent, the law in Canada can be seen as an evolution of the practices elsewhere