The Ontario secret trial came to light last week, when the province’s Court of Appeal ruled publicly on the accused person’s appeal of their conviction and sentence.Colin Perkel/The Canadian Press
A secret criminal trial in Ontario in which the identities of the judge, lawyers and accused were all concealed from the public is the latest in a series of undisclosed or confidential court hearings to be revealed in Canada in the past year and a half.
The secrecy extends to where the alleged crimes occurred, what they were and what police agency investigated them. Not only are the files sealed, even the docket number is a secret. The level of court at which the trial was held has not been publicly specified.
Trial judges have imposed this type of secrecy, and appeal courts have accepted it, as the cost of protecting confidential informants, who share inside knowledge of crimes with police and may face retaliation from the offenders they help imprison. But media organizations are decrying secret trials, and have mounted a legal challenge to the practice that will be heard by the Supreme Court of Canada in December.
“This is very dangerous,” Patrick Bourbeau, president of the Canadian Media Lawyers Association and vice-president of legal affairs for La Presse, told The Globe and Mail.
“It brings us back to the Middle Ages, where trials would be held in some sort of Star Chamber within the confines of the Tower of London, or somewhere in the dungeons of the castle.”
In two secret criminal trials, the Ontario one and one in Quebec, confidential informants were the accused. The trials came to light only when the two accused appealed their convictions to their provinces’ top courts, which issued redacted rulings revealing that the trials had occurred.
A third case, in British Columbia, was on a public hearing list, where it was noticed by a newspaper reporter last fall. It was a civil action, not a criminal one. There has been no confirmation that it involved police informants. It is called Named Persons v the Attorney General of Canada.
There have long been closed-door hearings in certain types of cases, such as those involving national security – including one held at an undisclosed location. But entirely secret proceedings are believed to be rare, though the numbers of them are not known.
The Ontario secret trial came to light last week, when the province’s Court of Appeal ruled publicly on the accused person’s appeal of their conviction and sentence. The ruling, redacted for the public, upheld the conviction and an unspecified jail term. The informant had been seeking a sentence of house arrest, in the belief that this would have offered more protection. The complete written judgment was given to the parties in the case.
In the Quebec case, when the province’s appeal court revealed the existence of a formerly secret trial in March, 2022, media organizations, including La Presse, Radio-Canada and The Canadian Press, asked the court to lift some of the secrecy. Even Court of Quebec Chief Justice Lucie Rondeau and provincial Attorney-General Simon Jolin-Barrette filed motions seeking more information on the case. But the Quebec Court of Appeal upheld the secrecy, by a count of 3-0.
On Dec. 12 and 13, the Supreme Court will hear the media organizations’ appeal of the Quebec ruling. The first day will be held in public, and the second behind closed doors, as the court weighs the protection of informants, who are often critical to police and prosecutors, against the openness of courts.
Interest from governments and legal organizations is intense. The Ontario, B.C. and Alberta governments are asking the court’s permission to intervene, so they can argue in favour of secrecy around informants, which is known as informer privilege. Several additional media groups are asking to intervene in favour of greater openness.
Mr. Bourbeau, the media lawyer, said he understands that some parts of certain cases may be held behind closed doors, and result in limited publication bans. “But at the very minimum, the public knows there is something going on, a case is being heard. … In this case, there was zero,” he said.
The Attorney-General of Canada is asking the Supreme Court’s permission to intervene in the case, in order to argue that informer privilege justifies restricting the openness of courts only to the extent necessary to protect the relevant informant’s information. The Attorney-General also says judges should have the discretion to notify the media of closed-door proceedings involving informer privilege, but should not be obliged to do so.
Benjamin Berger, a law professor at York University’s Osgoode Hall Law School, said respect for the secrecy that protects police informants has been very strong in Canadian law for many years.
“It is arguably now as strong as, or stronger than, solicitor-client privilege in our law,” he said. “It’s become a truly near-absolute privilege.”
Anthony Moustacalis, a former president of the Criminal Lawyers’ Association, said people in the criminal underworld try to piece together from court records the identities of informants.
“So the court response has been to respect as much as possible the privacy of a confidential informant. The question that’s raised is, how do you protect public scrutiny?” He said some level of public scrutiny should be allowed, with privacy protections for informants, such as screens to shield them from public view while they testify.
As an example of why public and media scrutiny is necessary, he said a secret trial could conceal that a government wasn’t honouring a deal it had made with an informant.
“If the government isn’t honouring its deal, that’s something that the public should know about. … On the other hand, how do you protect the safety of someone who has given information in confidence?” he said.
The Quebec case involved a confidential informant accused of participating in the crime they had revealed to police. The appeal court said charging an informant puts that person’s right to an open trial at risk.
“Collaboration with police informants, who are not always as pure as the driven snow, has its downsides, including that we cannot always prosecute them for their crimes,” the court wrote last year as it tossed out the conviction.
Secrecy, it said, “is the price of a relationship that, for a very long time, jurisprudence has considered essential to criminal justice, despite the compromises it necessarily generates.”
The B.C. Court of Appeal, in a ruling last December, said that, in some circumstances, “public access to confidential and sensitive information will endanger and not protect the integrity of our justice system.”