The Supreme Court of Canada began hearing arguments Tuesday over whether Canadian courts can hold closed trials that are not recorded on court dockets.
The Canadian Broadcasting Corporation and other media outlets, including The Canadian Press and La Presse, took the case to the Supreme Court of Canada. The Attorney General of Quebec is also an appellant.
Tuesday’s hearing in the Supreme Court stems from a criminal case involving an informant who was later convicted of involvement in crimes he disclosed to police.
The existence of the trial first became public when the informant appealed his conviction. The Quebec Court of Appeal subsequently issued a redacted decision reversing the conviction, but was also highly critical of the secrecy surrounding the trial.
The Supreme Court heard on Tuesday that a judge in the first trial ruled that disclosing details of the case to the public could compromise the identity of the informant and that the trial should be kept secret.
As a result, the case was not assigned a docket number, and details such as the nature of the crime, the location where it allegedly took place, the name of the judge involved, and the name of the lawyer were kept secret.
Appearing in Ottawa’s Supreme Court on Tuesday, Christian LeBlanc, a lawyer representing the news organization, cited a Court of Appeal ruling that said the original trial “exists only in the memories of those involved.”
LeBlanc noted that the Court of Appeals said secret trials “contrary to the fundamental principles that govern our judicial system.”
“We recognize the importance of courts holding public legal debate in Canada, and we know that public trust rests on this fundamental pillar,” LeBlanc said.
“But once we’ve been told that, how do we let all Canadians know that something like this will never happen again in our country?”
The duty to notify is
LeBlanc said allowing lower court judges to decide that cases can be heard in complete secrecy without discussion in court would undermine trust in the judicial system.
“The way we protect police informants, and the way we make sure we don’t have secret trials… is to remove this discretion,” LeBlanc said. “What’s most important here? It’s the rule of law.”
LeBlanc said he does not dispute the need for courts to sometimes hold hearings in front of cameras, excluding the public and banning media coverage. At the very least, Canadians should know that a trial is taking place, he said.
“What is needed to ensure that a decision like this never happens again is a systematic notification to the media so that we can have an adversarial discussion about confidentiality,” he said.
LeBlanc said the case will be halted if the judge determines that automatically informing the media of a trial being held and the names of the judges and lawyers involved would jeopardize the safety of the informant. said it should.
He added that if the Crown Prosecution Service believes that the incident could endanger the informant’s life if basic details are made public, it may choose not to prosecute in the first place.
Pierre-Luc Beauchene, a lawyer for Quebec’s attorney general, also criticized the decision to hold a secret trial, but did not advocate stripping judges of their discretion.
He said requiring judges to notify the media when considering holding a secret trial could jeopardize the identity of informants.
Beauchene asked the Supreme Court to send the case back to the Court of Appeal so that it can release additional information about the case, provided Quebec’s attorney general redacts any information that could identify the informant. He said he was looking for.
Ontario, Alberta, and federal governments
Ontario’s attorney general, who is intervening in the case, said requiring courts to automatically notify the media in sensitive cases could jeopardize the safety of informants. He said imposing “uniform requirements” on judges to report could undermine the cause of justice.
“The end result of the mandate will not be that more information is made available to the public; it will be that meaningful cases in the public interest are not prosecuted.”
Lawyers representing Alberta’s attorney general also want judges to retain the discretion to hold secret trials in certain cases.
Lawyer Ginette Gobeil, intervening on behalf of Canada’s attorney general, told the court the law should not be changed to take away discretion.
“It is not a good idea to limit the judge’s discretion in our submission,” Gobeil said. “This can have a freezing effect on an already overloaded system.”
The Supreme Court of Canada will continue hearing the case on Wednesday, but all information presented in court will be subject to a publication ban and the media and public will be barred from the courtroom.
