Supreme Court allows media appeal in part over Quebec ‘secret trial’

MONTREAL — The Supreme Court of Canada has partially allowed an appeal by the media over a closed-door trial in Quebec involving a police informant, but the high court insists no “secret trial” ever took place.

The trial judge and the Quebec Court of Appeal acted correctly by keeping secret information that could identify the informant, such as the nature of the crime, where it is alleged to have occurred and the name of the judge involved in the case, the Supreme Court said in a unanimous ruling Friday. The case had no case number and the names of the lawyers involved were also withheld from the public.

However, the Supreme Court said that some of the court proceedings could have been kept on the court roll and on the hearing roll, even in a case for which the proceedings are being conducted “in camera”, meaning in private, without public access or mass media.

“We have difficulty imagining a single scenario in which disclosure of the mere existence of an in camera hearing and any decision rendered as a result is inconsistent with the protection of a whistleblower’s anonymity, such that their existence must remain confidential indefinitely,” he wrote instance. .

The original case involved an informant who was convicted of participating in a crime he disclosed to the police. The trial’s existence only became public because the whistleblower challenged their conviction, and the Court of Appeal in March 2022 issued a redacted decision that overturned the conviction and was highly critical of what it called a “secret trial.”

Lawyers for the province’s attorney general, the chief justice of the Quebec court and several media organizations, including The Canadian Press, went before the Quebec Court of Appeal to get details about the case and the whistleblower.

That appeal failed, however, when, in July 2022, the Court of Appeal ruled that it could not issue any information, stating that whistleblowers’ right to remain anonymous supersedes the principle that court proceedings should be open to the public. The decision was appealed to the Supreme Court.

In its decision on Friday, the Supreme Court criticized the Court of Appeal’s use of the word “secret trial” and argued that no such thing had taken place. It said the proceedings against the whistleblower “began in public with the initiation of a criminal prosecution” and were only made private when the accused decided to apply for a stay of proceedings based on the state’s alleged abuse of them as whistleblowers of the police.

“The scope of the controversy may also have been limited if the Court of Appeal had not used the phrase “secret proceedings” to describe what were effectively in camera hearings held in a proceeding that initially began and continued public”, he wrote.

“In addition to being inaccurate, this phrase is unnecessarily alarmist and has no basis in Canadian law.”

The High Court held that both the trial judge and the Court of Appeal correctly respected their duty to protect the identity of the police informant, but that both courts could have provided more information without compromising that objective.

The Supreme Court said the judge could have created a “parallel proceeding” related to the request to suspend the whistleblower. This, they said, could have been kept separate from the original criminal proceedings, which would have protected the whistleblower while allowing a file number and a redacted version of the judgment to be released.

It also ordered the Court of Appeal to draft a redacted version of the original judgment that would protect the whistleblower’s identity and better respect the principle of open courts.

The lawyer representing the media outlets welcomed the decision, which he said ensures the whistleblower’s privacy and also shows respect for the principle that trials should be as public as possible.

“What is being said, in fact, is that there was, in a public trial, a procedure that was completely hidden – secret,” Christian Leblanc said in an interview.

“Ultimately, the court says it shouldn’t have happened like this, that there should have been, at the very least, a publicly displayed court number and a published judgment — even if redacted — to make sure there was no such of number. secret procedures”.

The court, however, rejected an argument by media companies that disclosure rules should be relaxed and judges should be required to inform third parties – including the media – that a whistleblower is seeking to have their identity protected.

The Court said that judges must retain discretion over whether to inform journalists of an informant’s claim of privilege, noting that “the possibility cannot be ruled out that a rigid rule would prevent the anonymity of an informant in a particular case”.

This report by The Canadian Press was first published on June 7, 2024.

Morgan Lowrie, Canadian Press