Canadians need to know that trials are not being held in secret, Supreme Court Chief Justice Richard Wagner said during a hearing Tuesday on a Quebec criminal proceeding that was so concealed that even one of the province’s chief judges was unable to find out anything about it.
The question at the heart of the case is how the absolute confidentiality granted to police informants can co-exist with the principle of open courts. Chief Justice Wagner tends to be in the court’s broad ideological centre, and his comments may reflect discomfort among some of his colleagues with the blanket of secrecy.
“The public nature of debate is an essential pillar of democracy,” the Chief Justice said as he posed a question to a lawyer representing the CBC, La Presse and The Canadian Press, which have challenged the secrecy. “We know how fragile democracy can be, and so it is important to maintain these principles.”
The trial whose hidden nature is being debated by the Supreme Court involved a police informant accused of committing a crime. The case came to light only after it reached the Quebec Court of Appeal, which issued a public, though partly redacted, ruling. The appeal court stressed the importance of protecting police informants, who are at risk of reprisals for sharing information about crimes, and who play an important role in the prosecution of drug offences, organized crime and terrorism. (The appeal court threw out the informant’s conviction, saying police had neglected to explain that the person had no immunity if they revealed their participation in an offence police were not aware of.)
The appeal court declined to reveal where the crimes occurred, what they were, which police agency investigated them or what level of court tried the case. Lucie Rondeau, who was the Court of Quebec’s chief justice at the time, conducted an internal investigation after the appeal court made the case public, but was unable to determine whether it had been tried in her court or in a federal court.
Christian Leblanc, a lawyer representing the media groups that are challenging the secrecy in the case, said Canadians need assurance that “secret trials can never take place.”
He urged the court to require lower-court judges to notify media agencies of these cases, so media lawyers can go to court and debate in closed proceedings whether any of the confidentiality can be dropped without revealing an informant’s identity.
If even notifying media agencies would risk identifying an informant, a judge should stay the charges – that is, throw them out – because a secret trial does severe harm to public confidence in the legal system, Mr. Leblanc said.
“It’s the judge’s decision to say, ‘I will not lead the Canadian justice system down the road to a completely secret trial, so I will stay proceedings,” Mr. Leblanc said.
Anil Kapoor, representing the Criminal Lawyers’ Association, an intervenor in the case, said that where an accused person challenges claims by the prosecution that someone who has given evidence against them is entitled to informer privilege, the court should appoint special counsel to appear in closed proceedings to protect the accused’s interests.
“Hang on now,” Justice Malcolm Rowe told Mr. Kapoor. “Let’s say someone is snitching on the Hells Angels. They get found out – they’re done.” The special counsel’s daughter might be kidnapped on her way home from school, for example, and the information extracted from her, Justice Rowe said.
Mr. Kapoor replied that a police officer, a prosecutor or a judge might even now face those same risks.
Justice Rowe said, “Generally speaking, criminal gangs do not kill police officers or judges. It’s bad for business.”
Mr. Kapoor replied that special advocates for defendants in national-security cases have never been threatened or killed.
James Clark, a lawyer representing the Attorney-General of Ontario, also an intervenor, urged the court not to require notice to the media. That requirement would discourage informants, he said. Currently, they are promised their identities will be revealed only to those duty-bound to maintain confidentiality.
“If that promise became contingent on the discretion of a judge or includes third parties, the promise loses all value,” Mr. Clark said.
A second problem with a notice requirement is that certain prosecutions that are in the public interest simply wouldn’t happen, Mr. Clark said. “There may be perfectly valid reasons to prosecute an informant. Informant status cannot be a grant of immunity,” he added.
Or the informant could be the one who has been victimized, and who must decide whether to file a complaint – for instance, if they were sexually assaulted by their police handler.
“They shouldn’t have to choose between justice and their privilege” as police informants, Mr. Clark said.
Deborah Alford, a lawyer representing the Alberta Attorney-General, said informants’ confidentiality is sacrosanct, and similar to the protection given to solicitor-client discussions. “They can be the anonymous informant who provides a tip to a Crime Stoppers program. They can be the retired neighbour who watches from their home the goings-on in the neighbourhood,” she said.
“Often in my experience,” Justice Rowe said, “they’re quite unsavoury people, who want to have revenge on someone else who is also an unsavoury person.”
Ms. Alford agreed. This, she said, is why “the reprisals and vengeance sought upon informants” must be protected against.
The case requires the Supreme Court to grapple with its 2007 ruling in a case involving an informant in an extradition proceeding. That ruling limited what media agencies and special counsel could be told.
“Open courts are undoubtedly a vital part of our legal system and of our society, but their openness cannot be allowed to fundamentally compromise the criminal justice system,” an 8-1 majority said.
The hearing continues Wednesday in a closed session, so that the informant involved in the case can present arguments to the court.