Supreme Court rules that 'secret trials' don’t exist in Canada

The Supreme Court of Canada says the Quebec Court of Appeal was wrong to term an in camera proceeding a “secret trial.”

In a unanimous decision, it ruled that the court of first instance erred when the judge made no record of the trial, believing that revealing anything about the motion, including its existence, would likely compromise the Named Person’s anonymity.

“The very concept of a ‘secret trial’ does not exist in Canada,” the top Court wrote.

“This Court has long since delineated how the cardinal principle of court openness may be tempered where circumstances of a case so require,” adding “any comparison of hearings held totally in camera to a ‘secret trial’ is wrong and needlessly alarming.”

The Named Person, a police informer, was accused of criminal offences and brought a motion to stay proceedings at trial. They were ultimately convicted and appealed to the Quebec Court of Appeal, which allowed the appeal, stayed the conviction, and entered a stay of proceedings based on abuse of process.

Media organizations, the Attorney General of Quebec, and the former chief justice of the Quebec provincial court all brought a motion to shed more light on the proceedings given the confidentiality orders made in the case, which eventually made its way to the Supreme Court of Canada.

The Supreme Court partially allowed the appeal, stating that the first order where the identifying information must remain confidential was correct. However, the second order sealing the whole file was not. The Court ordered the Quebec Court of Appeal to make public a redacted version of the trial judgment included in the appeal record in consultation with the parties.

“At all times, the judge and justice system participants involved acted with honesty, integrity and a sincere desire to protect Named Person’s anonymity,” the Court wrote.

“However, when it came to proceedings in camera, the judge mistakenly thought that the only approach to be taken in the unusual circumstances of this case was to completely conceal the existence of any in camera hearing related to Named Person’s status as a police informer and of any decision rendered as a result.”

The Court added that there was no need for the motion of the stay of proceedings to be left off the court’s docket and for no formal number to be assigned to it.

The justices pointed to a better procedure to be applied based on the Supreme Court’s 2007 decision in Named Person v. Vancouver Sun.

Christian Leblanc, a partner at Faskin Martineau DuMoulin LLP in Montreal, represented the media outlets in the case. He welcomes the judgment.

“It’s a huge gain for the right of the public to information,” he says.

“The fact that the Supreme Court says that secret trials are intolerable in Canada, and that you can’t have a proceeding that is totally secret, to at least do a parallel file, have a court number, and on top of that, you need to publish the judgment from that parallel file—it may be redacted, but that, for us, was necessary.”

Leblanc is also pleased that there was more clarity on applying Vancouver Sun, particularly for courts of first instance.

“You can’t just proceed without putting the case on the books, and there is a big difference between having an in camera hearing and not even knowing that there is an in camera hearing going on,” Leblanc says.

“Ultimately, this led to the fact that the Canadian public will have the first instance judgment—it’s going to be redacted, but the Court ordered the Court of Appeal to do that work.”

Leblanc says that for first instance judges applying Vancouver Sun, while they have discretion, they need to minimize what they won’t publish to avoid identifying the police informer. If there is a debate about any of those details, they still need to create a file number and publish a judgment, even if it’s highly redacted.

Adam Goldenberg, a partner at McCarthy Tétrault LLP in Toronto, represented the Canadian Civil Liberties Association as an intervenor in the case. While encouraged that the Court reaffirmed the commitment to the open court principle, he says the justices could have gone further in their decision, as some of the parties hoped.

“With respect to the informer privilege, the Court has declined to break any new ground,” Goldenberg says. “The appellants in this case asked the Court to modify certain elements of the test that the Court announced in Vancouver Sun, and the Court declined that invitation.”

He says that what’s concerning is that the Court has concluded there is no meaningful constraint on the power of trial courts to limit public access to their proceedings to protect the informer privilege.

“There have to be some limits in order for us to stick to the principle that justice done in secret is not justice done at all,” Goldenberg says.

“The Court took umbrage at the suggestion that what happened here was a ‘secret trial’ because, as the Court notes, it wasn’t secret.”

He says that while the Court emphatically says secret trials cannot possibly happen in our system, it also states that a proceeding, including a trial, can be held entirely in camera.

“To me, that’s slicing the onion awfully fine,” Goldenberg says.

“The reality is the phenomenon that the Court is talking about in this case is not one that is going to recur frequently, but it would have been preferable if the Court had been a little more bold to the principles that it endorsed in this very decision, about the importance of conducting criminal proceedings out in the open and the importance of public access to information about what happens in our courts.”

Kevin Westell, a partner with Pender Litigation in Vancouver and past chair of the Canadian Bar Association’s criminal justice section, says the decision is common sense, even if the public is disappointed it doesn’t have access to the full record.

“Those who consider it unjust that matters of informer privilege are kept from the public don’t understand the fact that if informer privilege information is released in a matter of law, we won’t have confidential informers anymore, and we as a society lose a vital crime-fighting tool,” Westell says.

“In the short term, if that information is released, people will be harmed and people could die, and that’s the reason these things need to be kept secret.”

Westell says while he appreciated the Court’s criticism of the use of the term “secret trials” by the Court of Appeal, there can be unfortunate situations that arise where someone’s safety has to be put ahead of the public’s interest in an open process.

“It’s important that the Supreme Court of Canada spoke to the importance of restraint, that courts not leap into in camera processes where they aren’t necessary,” he says.  

“But…as long as there are matters of privilege recognized in Canadian law, in camera hearings are going to continue. There’s nothing wrong with an in camera process in appropriate circumstances.”