Decision clarifies dynamic between open court principle and informant privilege
The criminal prosecution of a police informant, held in camera and kept confidential to protect the informant’s identity, was not a “secret trial,” the Supreme Court of Canada confirmed Friday morning.
The highly anticipated decision clarified the relationship between the open court principle and informant privilege.
In this Quebec case, the nature of the criminal allegations against the informant have not been publicized. The trial was not on the court docket. The informant had moved to stay the proceedings based partly on abusive state conduct. The judge heard the motion in camera, and the court gave no notice to media. The motion’s content was held as confidential, and so were the exhibits and transcripts submitted in the hearing. The court dismissed the motion in a written judgment without a file number that was not made public.
The court convicted the informant. They appealed and the appeal was also heard in camera without any notice given to the media. The court allowed the appeal, stayed the conviction, and found there was an abuse of process by the state.
The Court of Appeal released a public version of its judgment, redacting any information that identified the appellant, court, judge, judicial district, prosecutors, defence counsel, police involved, and the nature of the alleged crime. But the appeal court also criticized the lower court for holding a “secret trial.”
Several media organizations, Quebec’s attorney general and chief justice asked the Court of Appeal to review the case. The court upheld the decision to seal all identifying information and confirmed the decision’s redactions. The media organizations and the AG appealed to the SCC.
In Canadian Broadcasting Corp. v. Named Person, 2024 SCC 21, the SCC’s unanimously allowed the appeals in part. The court remanded the case to the Quebec Court of Appeal to publicize a redacted version of the trial judgment to include in the appeal record.
The court said the controversy arising from the Quebec Court of Appeal’s first judgment could have been avoided had the appeal court not used the term “secret trial” to describe the in camera hearings “held in a proceeding that began and initially moved forward publicly.”
“In addition to being inaccurate, this expression is needlessly alarming and has no basis in Canadian law,” said the SCC in its reasons, which were written jointly. “The very concept of “secret trial” does not exist in Canada, and any comparison of hearings held totally in camera to a ‘secret trial’ is wrong.”
The fundamental importance of court openness means that confidentiality orders limiting it can only be made in rare circumstances, said the court. One exception is informer privilege, which protects the informer’s name and any information that may lead to identification and applies when police receive information under the explicit or implicit promise of confidentiality. Once it is established, the privilege is non-discretionary, and courts have no choice but to abide by it.
The court said that the prohibition on revealing an informer’s identity has “dual objectives.” The intention is to protect the informer from potential retribution and to encourage others to cooperate with police knowing their identities will be protected.
When proceeding in camera, the SCC said courts must “rigorously apply” Named Person v. Vancouver Sun, 2007 SCC 43, [2007] 3 S.C.R. 253, which proposed a “flexible and malleable” two-stage procedure applicable when informer privilege is claimed. In the first stage, the court verifies the privilege’s existence, which is automatically engaged if that person is a police informer. Second, the court must execute the proceedings without violating the privilege while accommodating the open court principle, the right to be heard, and the adversarial nature of the proceedings, to the greatest extent possible.
While the court determines how best to protect the privilege while preserving the open court principle, it can allow third parties to make submissions or appoint an amicus curiae for guidance. Courts must also have the discretion to issue notice to third parties advising that privilege has been claimed and confidentiality orders contemplated.
In Canadian Broadcasting Corp. v. Named Person, the SCC said that the judge hearing the stay-of-proceedings motion was justified in deciding not to give notice to interested third parties but added that the judge should not have left the motion off the court’s docket and hearing roll and there should have been a formal number assigned to it. The judge should have made an order to create a parallel proceeding, separate from the criminal proceeding. While redacting information that could reveal the person’s identity, the new proceeding could have been on the court’s docket and hearing roll with a redacted judgement on the motion released.
While the Court of Appeal had no choice but to heavily redact its judgments, the SCC said it erred in upholding the order that the entire appeal record be sealed and should have publicized a redacted version of the trial judgement.
Prior to the ruling, Shakir Rahim, director of the criminal justice program at the Canadian Civil Liberties Association, said, “Secret trials should be unheard of in a free and democratic society. This case is a critical opportunity for the Supreme Court to uphold the importance of open courts and the limits on secrecy in the court system.”
The CCLA, an intervenor, said in its factum that there has been a “proliferation” of secret trials in Canada recently. This despite that such secrecy is not supported by the Constitution, any legislation, or common law.
The CCLA argued that the courts must respect jurisdictional limits in making confidentiality orders, which means that when a statutory court has a criminal matter requiring that they conceal the identity of a police informer, the court must draw its jurisdiction from federal legislation. But, said the CCLA, there is no provision allowing a court to make the trial date, court, and the judge’s and lawyers’ identities confidential, while not assigning a file number.
The CCLA also submitted that, for the sake of fairness, non-media organizations should have the opportunity to make submissions on hearings concerning confidentiality order requests, and the SCC should clarify the role of non-media organizations in these types of hearings.
