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Both the nature of the disclosure inquiry and the rationale for it being conducted by an independent person can be understood from a comparative review of the inquiry conducted by the courts in relation to searches or arrests without warrant. In R v. Debot, Mr. Justice Martin of the Ontario Court of Appeal described it this way:

Unquestionably, information supplied by a reliable informer, even though it is hearsay, may in some circumstances provide the necessary "reasonable grounds to believe" to justify the granting of a search warrant . . . It would seem to be entirely logical and reasonable that such information can also provide the necessary "reasonable ground to believe" to justify a warrantless search, where a warrantless search is authorized by law. On an application for a search warrant, the informant must set out in the information the grounds for his or her belief in order that the justice may satisfy himself or herself that there are reasonable grounds for believing what is alleged. Consequently, a mere statement by the informant that he or she was told by a reliable informer that a certain person is carrying on a criminal activity or that drugs would be found at a certain place would be an insufficient basis for the granting of the warrant. The underlying circumstances disclosed by the informer for his or her conclusion must be set out, thus enabling the justice to satisfy himself or herself that there are reasonable grounds for believing what is alleged. I am of the view that such a mere conclusionary statement made by an informer to a police officer would not constitute reasonable grounds for conducting a warrantless search or for making an arrest without warrant. Highly relevant to whether information supplied by an informer constitutes reasonable grounds to justify a warrantless search or an arrest without warrant are whether the informer's "tip" contains sufficient detail to ensure it is based on more than mere rumour or gossip, whether the informer discloses his or her source or means of knowledge and whether there are any indicia of his or her reliability, such as the supplying of reliable information in the past or confirmation of part of his or her story by police surveillance. I do not intend to imply that each of these relevant criteria must be present in every case, provided that the totality of the circumstances meets the standard of the necessary reasonable grounds for belief. ( R. v. Debot (1986), 30 C.C.C. (3d) 207 at 218-19)

Madam Justice Wilson, in her judgement in the Supreme Court of Canada in the same case, developed what has become known as the "Triple C" test:

First, was the information predicting the commission of a criminal offence compelling ? Second, where that information was based on a "tip" originating from a source outside the police, was that source credible? Finally, was the information corroborated by police investigation prior to making the decision to conduct the search? I do not suggest that each of these factors forms a separate test. Rather, I concur with Martin J.A.'s view that the "totality of the circumstances" must be the standard of reasonableness. Weakness in one area may, to some extent, be compensated by strengths in the other two. ( R. v. Debot, [1989] 2 S.C.R. 1140 at 1168, emphasis added)

The Court here was articulating a line of inquiry directed to the power to search or arrest without warrant. In neither situation can the informant's information, unless corroborated by legally admissible evidence, form the basis for further deprivations of liberty. An arrest without warrant based on information from an undisclosed informant may be lawful, but it cannot justify further detention unless a charge is laid, based on evidence presented to a court in the presence of the accused. The threshold inquiry for prisoners facing deprivation of their institutional liberty on the basis of undisclosed information should be at least as rigorous, requiring undergoing impartial, independent review.

During my research at Kent and Matsqui, it was a frequent refrain at Segregation Review Boards that the basis of the information could not be disclosed because it had been collected by the IPSOs; in due course, those officers would determine how much of the information would be shared. Where a written gist of information was provided, it often lacked the detail necessary for an effective response from the prisoner. During my many discussions with them, the IPSOs at both institutions asserted that their training and experience had taught them to assess the reliability of their sources of information; their work involved corroboration where that was possible and also piecing together information from anonymous "kites," officer observations, interviews with prisoners, intercepted telephone conversations or letters, and police intelligence from the street. They maintained that their operating procedures ensured a prisoner's rights and liberties were not interfered with on the basis of mere rumour or unsubstantiated allegations.

In April 1995 I interviewed Peter Thorpe, the IPSO at William Head and at that time acting IPSO at Kent. We discussed the frequent claim by prisoners that prison informants had personal agendas and that some prisoners were easy targets since their reputations kept them under suspicion. Mr. Thorpe acknowledged that these concerns about the unreliability of informer information were sometimes well founded. For example, a prisoner at Kent had told him that drugs were brought into the institution on particular days by a named prisoner through particular visitors. Mr. Thorpe's check of the records showed that, on the days in question, the named prisoner had had no visitors. A recent case had involved a prisoner transferred from Elbow Lake to Kent after a weapon was found in his room. Based on Mr. Thorpe's discussions with this prisoner (whom he had known at William Head) and on other information he received, he believed the prisoner had been set up. While at Elbow Lake, the prisoner had been lending bales of tobacco to be repaid with interest, and Mr. Thorpe believed those indebted to the prisoner had planted a weapon in his room as a way of avoiding repayment. He also confirmed that some "high profile" prisoners were the subjects of a disproportionate amount of informant information, much of which was not substantiated. He identified Robert Martineau as one such prisoner at Kent.

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