SCC rules on interplay of informer privilege & open courts in so-called secret trial case

By Cristin Schmitz ·

Last Updated: Friday, June 07, 2024 @ 6:15 PM

Law360 Canada (June 7, 2024, 1:52 PM EDT) -- The Supreme Court of Canada says no “secret” trial occurred during the in-camera prosecution of a confidential police informer in Quebec, but it has ordered 9-0 that a redacted trial judgment should be made public, which contains no information that might identify the police informer in breach of what the top court has previously described as the “extremely broad and powerful” informer privilege. 

The top court’s per curiam ruling on June 7, 2024, elaborates on how courts are to handle the interplay between confidential informer privilege — which is near-absolute — and the open court principle, in the context of a notorious Quebec case involving a confidential police informer who was convicted on criminal charges at a closed-door criminal trial several years ago: CBC et al. v. Named Person, 2024 SCC 21.

The court said its indexed 67-page judgment aims to “guide trial judges who must proceed in camera, in order to ensure that they accommodate the open court principle to the greatest extent possible.”

Supreme Court of Canada justices, 2024

Supreme Court of Canada justices, 2024

After conviction, the informer, referred to as the “named person” in the Supreme Court’s judgment, obtained a stay of proceeding for abuse of process at a closed-door conviction appeal hearing at the Quebec Court of Appeal. The existence of the criminal case only came to light nearly a month later in the appeal panel’s heavily redacted judgment on the conviction appeal, which sealed all the information in the appeal record, including the unredacted trial judgment below: Designated person v.  R., 2022 QCCA 406.

In a second related ruling afterward, the appeal panel dismissed motions to review its confidentiality orders that had sealed the unredacted version of its appellate judgment and all information in the appeal record on the basis that it would be impracticable to reveal any of the case information while still preserving the near-absolute privilege that shields a police informer’s identity: Designated person v.  R., 2022 QCCA 984.

(Informer privilege shields from disclosure any information that might identify the confidential informer, except in those rare criminal cases when the defence can show that privileged information must be disclosed because the accused’s innocence is at stake).

The Supreme Court of Canada’s decision allows in part the appeals of CBC, La Presse Inc., MediaQMI Inc., other Quebec-based media organizations and the Attorney General of Quebec, who sought to lift the appeal court’s sweeping confidentiality orders, in whole or in part.

The appellants urged that the appeal court had been overly restrictive in suppressing information about the underlying proceedings and that the panel erred in determining that it would be unworkable to partially unseal the court record and still preserve the informer privilege. The sealed appeal court file shields, among other things, the nature of the charges and the identities of the prosecuting authority, the judicial district, the trial judge and the prosecuting and defence counsel.

The case caused an uproar within Quebec’s legal community and shocked the public when its existence was first revealed on March 23, 2022, by the Quebec Court of Appeal’s redacted reasons on the conviction appeal, following its Feb. 28, 2022, decision allowing the informer’s appeal, and entering a stay of proceedings.

In ordering the case back to the Quebec Court of Appeal to make public a redacted version of the trial judgment included in the appeal record — after the appeal court consults the parties in the criminal case on a proposal for partial unsealing and redaction — the Supreme Court took pains to clarify that “no secret trial was held in this case.”

Rather, the criminal proceeding against the accused informer began and moved forward publicly until the accused filed a motion to stay proceedings, based in part on the state’s abusive conduct toward them as a police informer. It was then that the trial judge granted a joint request by the parties to hear the stay motion in camera. No notice was given to the media because the judge considered that revealing anything about the motion, including its existence, would likely compromise the accused police informer’s anonymity. The motion was dismissed in a non-public written judgment, which had no file number. The hearing was in camera, and the witnesses had been examined out of court, with the parties asking the judge to decide on the basis of transcripts.

As the Court of Appeal put it, “no trace of this trial exists, except in the memories of the individuals involved.”

The Supreme Court said that the controversy around the case arose after the Court of Appeal released its conviction appeal judgment in March 2022, in which the panel “misguidedly denounced the holding of a ‘secret trial.’”

The controversy “was largely due to the gap between what the public knew and what it did not know, combined with the effect of the unfortunate expression used by the Court of Appeal,” the Supreme Court said, calling the situation “unfortunate” and avoidable.

“That expression could in fact have suggested that Named Person had been convicted following a secret criminal proceeding,” the top court observed. “That state of affairs alarmed the public and the media. It also jeopardized public confidence in the justice system. But to be clear, no secret trial was held in this case. As can be seen from the Court of Appeal’s second decision in July 2022, the criminal proceeding against Named Person began and moved forward publicly until Named Person filed a motion for a stay of proceedings based in part on the state’s abusive conduct toward them as a police informer.”

The Supreme Court said the controversy could have been avoided, first and foremost, if the trial judge had proceeded in camera by creating a parallel proceeding for the stay of proceedings/abuse of process motion “completely separate from the criminal proceeding in which Named Person had been appearing publicly until that time.”

“The magnitude of the controversy could also have been limited if the Court of Appeal had not used the expression ‘secret trial’ to describe what were actually 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.”

The top court reiterated the continued applicability of the procedure and “guiding rule” set out by the Supreme Court 17 years ago in Named Person v. Vancouver Sun, 2007 SCC 43. In an extradition case involving a claim of informer privilege, the top court held that once informer privilege is found, “the question that the judge must ask is this: Is a totally in camera proceeding justified on the basis that only an in camera proceeding will properly protect the informer privilege, or will sufficient protection be possible via other means, such as a partial in camera proceeding, or some other option?”

In the CBC case, the Supreme Court said it wanted to “reiterate the relevance of the Vancouver Sun procedure and the importance of rigorously applying its guiding rule requiring a court to protect informer privilege while minimizing, as much as possible, any impairment of the open court principle.”

“For this purpose, the courts must be flexible and creative,” the court stipulated. “What is in issue is the maintenance of public confidence in the administration of justice and respect for the rule of law.”

The Supreme Court went on to note, in fairness to the Court of Appeal, that the appeal panel had been in a difficult position because the conviction appeal that came before it did not relate in any way to the trial judge’s confidentiality orders below. Moreover, despite the errors, “all of the justice system participants involved were in good faith and acted with integrity. They were all motivated by a sincere desire to protect Named Person’s anonymity, as was their duty.”

The Supreme Court noted that “in this context, we can only commend [the Quebec Court of Appeal’s] decision to proactively champion the open court principle and the democratic ideals underlying it by opening a record at its court office and making public a redacted version of its judgment of February 28, 2022.”

Given the particular circumstances of the case, “the Court of Appeal had no choice but to redact its judgments as heavily as it did,” the Supreme Court ruled. “It was therefore correct to dismiss the motions for total or partial disclosure of the information that had been kept confidential up to that time.”

However, the appeal court erred in upholding its order that the entire appeal record be sealed, the top court concluded. “It should have made public a redacted version of the trial judgment, because redacting that decision was an entirely feasible undertaking that did not compromise [the] Named Person’s anonymity and that accommodated the open court principle.”

The Supreme Court’s reasons for judgment underscore the “paramount” importance to democracy of open and transparent courts.

“When justice is rendered in secret, without leaving any trace, respect for the rule of law is jeopardized and public confidence in the administration of justice may be shaken,” the court wrote.

“The open court principle allows a society to guard against such risks, which erode the very foundations of democracy. By ensuring the accountability of the judiciary, court openness supports an administration of justice that is impartial, fair and in accordance with the rule of law. It also helps the public gain a better understanding of the justice system and its participants, which can only enhance public confidence in their integrity. Court openness is therefore of paramount importance to our democracy — an importance that is also reflected in the constitutional protection afforded to it in Canada.”

“The very concept of ‘secret trial’ does not exist in Canada,” the Supreme Court said.

However, “the cardinal principle of court openness may be tempered where the circumstances of a case so require,” the court remarked. “Various confidentiality orders may be made ... up to and including an order that all hearings be held in camera ... But it is well established that ‘secret trials,’ those that leave no trace, are not part of the range of possible measures.”

The court said that because of the fundamental importance of court openness, confidentiality orders limiting it can be made by the courts “only in rare circumstances. These exceptions are predicated on the idea that openness cannot prevail if the ends of justice, or the interests that openness is meant to protect, would be better served in some other way.”

In order for a police informer’s anonymity to be protected, the court said it is “necessary and desirable” that judges have the discretion to determine whether it is in the interests of justice to issue a notice to interested third parties advising them that the privilege has been claimed and that confidentiality orders are being contemplated.

“The existence of a discretion to issue a notice provides the court with the flexibility needed to ensure that, in each case, justice is served by adopting a procedure that is as consistent as possible with court openness without risking a breach of informer privilege,” the court explained. “Well‑settled jurisprudence unequivocally recognizes the importance of preserving this discretion, and there is no reason to depart from these precedents.”

The court also declined “to depart from the current state of the law, under which as much information as possible should be disclosed to interested third parties, but never any information that might compromise the police informer’s anonymity.”

The Supreme Court said it is not appropriate for information directly identifying the informer to be protected differently than information that is seemingly innocuous but may indirectly identify the informer. “The disclosure of such privileged information to interested third parties or their representatives, even subject to undertakings of confidentiality, would unduly expand the circle of privilege, thus undermining the dual objectives of the informer privilege rule.”

The court said that where an informer is on trial, and the informer asserts their status in a proceeding that began publicly in which they face charges that do not cause them to lose their status, and the informer‑police relationship is central to the proceedings, “the appropriate way to protect the informer’s anonymity will generally be to proceed totally in camera.”

“But even in these most confidential of cases, it is possible and even essential to protect the informer’s anonymity while still favouring confidentiality orders that do not entirely or indefinitely conceal the existence of the in camera hearing and of any decision rendered as a result,” the court said.

“This may require some creativity and perhaps some administrative arrangements, but at least one approach can be taken,” it advised. “This approach involves creating a parallel proceeding that is completely separate from the public proceeding in which informer privilege is initially invoked. The record for the parallel proceeding thereby created, though sealed, will have its own record number. Subject to the redaction of information that might tend to reveal the informer’s identity, it will generally be possible for the proceeding to be on the court’s docket and hearing roll and for a public judgment to be released.”

The top court said this “solution makes it possible to disclose at least a minimum amount of information to interested third parties, including the news media, that wish to file a motion for review of the confidentiality orders.”

Christian Leblanc of Fasken in Montreal, who represented the media appellants with Patricia Hénault and Isabelle Kalar, told Law360 Canada that “we favourably welcome the judgment. I think for us, it’s a huge gain for freedom of expression and the right of the public to know what happens in our court system.”

While the court said there was no secret trial, it did say there was a proceeding that was kept secret and that should not have been the case, Leblanc said. “And again, the court didn’t stop there and went further and said that every court proceeding should be recorded somewhere, and ... there is a difference between having an in-camera hearing and knowing there’s one and not knowing at all that something is happening in front of our court.”

One takeaway, he said, is that even in informer privilege cases, “the trial judge needs to make sure that the proceeding is not completely secret. It needs to be registered [in the record]. There needs to be a court order.”

The judge also needs to try to find a way to publish their judgment while preserving privilege, even if this requires redactions, “which is a great outcome because it assures us, and it prevents another situation” like we just experienced, Leblanc said.

Pierre-Luc Beauchesne, who with Simon‑Pierre Lavoie and Michel Déom, represented the appellant Attorney General of Quebec was not immediately available for comment.

Adam Goldenberg

Adam Goldenberg, McCarthy Tétrault

Adam Goldenberg of Toronto’s McCarthy Tétrault, who with Simon Bouthillier represented the Canadian Civil Liberties Association, one of about a dozen interveners, said that “what is frustrating about this decision is that the court is emphatic that secret trials are anathema to our system of open justice. The court is very strong in affirming the open court principle, which essentially says that justice done in secret cannot be justice in our system.”

“And in the same breath, almost, the court is adamant that a secret trial did not happen here and a secret trial could not happen in Canada,” Goldenberg said. “But a proceeding, including a trial, conducted entirely in camera, in order to protect the informer privilege would be acceptable as a matter of Canadian law. And those are assertions that are difficult to reconcile ... It’s a very fine distinction that the court draws between a secret proceeding and a proceeding held entirely in camera.”

It is positive that the court “says that it should only be in exceptional cases, that notice is not given to third parties, and who those third parties are is left up to the judge in that particular case,” Goldenberg said. “But the court is quite clear that the rule is you give notice and the exception is you don't, and there has to be a reason why you don’t ... It’s a helpful clarification.”

Photo of Supreme Court of Canada in 2024: SCC Collection

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