The Supreme Court of Canada on the banks of the Ottawa River is pictured in Ottawa on June 3.Sean Kilpatrick/The Canadian Press
The Supreme Court has ruled that while judges must take strict steps to preserve the anonymity of police informants who appear in Canada’s criminal courts, they cannot completely conceal from view all public records about such cases.
In a unanimous and unsigned decision released Friday, the court’s nine judges ruled that courts should not undermine public confidence in the criminal justice system by imposing overzealous secrecy. Even in high-pressure cases that centre on anonymous informants, the court ruled that judges must allow some level of access, such as the public release of redacted rulings that don’t name names, or spinoff parallel proceedings in which the media can fight for the release of records.
The court also ruled that cases involving police informants, who are granted legal protections including that their identities remain shielded, cannot be stricken from any mention in Canada’s courthouses.
“What they say is it can’t be totally obliterated,” says Christian Leblanc, a Montreal lawyer representing a media coalition at the Supreme Court. He said that facet of the ruling is itself a “big gain.”
In Canada, judges are given latitude to protect the identities of police informants who appear as witnesses or accused in criminal cases, which can extend beyond the informants’ names. Such sweeping orders can also include the names of police, prosecutors, defence counsel and even judges. Courts can also keep from public discussion details about the nature of crimes, where they took place, and even which specific law enforcement organizations are involved.
The ruling focused on a Quebec case in which a police informant was referred to in court records only as “Named Person.” The anonymous informant was charged and convicted of a crime, but the charges were stayed on appeal after arguments that the state committed abusive conduct.
No additional details have ever been released. A Quebec lower court judge – whose identity is also unknown – took steps to preserve secrecy by striking out any public mention of these proceedings in court, including by not assigning it a court file number.
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A Quebec Court of Appeal decision released in 2022 criticized the case by describing it as a “secret trial.”
Such descriptions prompted a public furor in Quebec. They also prompted the CBC, La Presse, The Canadian Press and other organizations to petition the Supreme Court of Canada for greater transparency in police-informant criminal cases.
In its response to the application, the Supreme Court concluded that the trial judge in the Quebec case went overboard by trying to “to completely conceal the existence of any in camera hearings related to Named Peron’s status as a police informer and of any decision rendered as a result.”
The Supreme Court decision urges trial judges to set up spinoff parallel proceedings, ones that shield informers while giving media members a forum to make arguments. The ruling also orders the public release of an underlying ruling in the case, once it can be sufficiently redacted.
The Supreme Court also criticized how the Quebec Court of Appeal characterized the case.
“We want to reiterate that the Named Person was not convicted following a secret proceeding,” the Supreme Court ruling says. The top judges call such language “needlessly alarming,” and add that “the very concept of a ‘secret trial’ does not exist in Canada.”
Rather, the Supreme Court ruling notes that portions of the case proceeded publicly.
Still, the court held that confidentiality orders – such as publication bans, sealing orders, or in camera orders that close courtrooms to the public – are lawful. The ruling stresses that it is absolute necessary for judges to take strong steps to safeguard the identities of informers who protect the public against threats by placing themselves in peril.
The Supreme Court says that the imperatives trump even the open court principle, a doctrine that allows media organizations access to most court records.
“Recognition of the non-discretionary and thus virtually absolute nature of informer privilege means that the interests protected by the open court principle yield to those protected by privilege,” the ruling says.
Lawyers for outside groups say they are assessing the implications of the ruling.
“We remain deeply concerned about the continuation of hearings held completely in camera in Canadian courtrooms,” said Shakir Rahim of the Canadian Civil Liberties Association, which intervened in the case.
“Thanks to the efforts of the Canadian media who brought this issue forward, journalists, and therefore the public, will be able to access the judgment in this case,” said Danielle Stone of the Canadian Media Lawyers Association.