In 2022, public outcry arose after the release of a judgment of the Court of Appeal of Quebec which revealed the holding of a "secret trial". The trial judge had put in place several confidentiality measures to protect the anonymity of the accused — a police informer — including their personal information, the nature, dates and circumstances of the offences with which they were charged, the identity of the judge, the trial court, the judicial district, the prosecutor and counsel for the prosecution, counsel for the person and the police force involved. No judgment was publicly issued.
After initially denouncing the secrecy of the procedure, the Court of Appeal, in a highly redacted decision, maintained most of the measures ordered by the trial judge. The Canadian Broadcasting Corporation and other media outlets appealed to the Supreme Court of Canada.
On June 7, 2024, the Supreme Court of Canada rendered its awaited decision (Canadian Broadcasting Corp. v. Named Person, 2024 SCC 21) in which it concluded that most of the confidentiality measures adopted in this case were warranted and legally sound. It held among other things that:
- informer privilege is "near absolute" and extends to any information that might lead to identification of a police informer including, in some cases, the judge, the counsel, the prosecutor, the judicial district, the date of a proceeding, and the judgment.
- in order to disclose as much information on the case as possible without revealing the identity of the informer, courts protecting informer privilege may need to create a separate, parallel proceeding distinct from the public proceeding in which the informer privilege is initially invoked.
- such proceedings can be held entirely in camera as long as their existence and the existence of any resulting judgment is disclosed.
Analysis
Reaffirming Informer Privilege
According to the Supreme Court, informer privilege plays a "crucial role in furthering the effectiveness of criminal investigations, the maintenance of public order and the protection of the public." It is well established that informer privilege is "near absolute" and extends to any information that might lead to identification of a police informer. The Supreme Court confirmed that, in some cases, the protection of informer privilege may require that even the identity of the judge, the counsel, the prosecutor, the judicial district, the date of a proceeding, and the judgment be kept confidential.
Despite being asked by the appellants to revisit the procedure that applies to the assertion of informer privilege, the Supreme Court unanimously upheld the procedure it had established in Named Person v. Vancouver Sun, 2007 SCC 43. The Supreme Court therefore rejected the appellants' submission that judges should be required to issue notices to interested third parties every time a confidentiality order is being sought. In addition, the Supreme Court rejected the appellants' submission that information not directly identifying the informer should be disclosed to interested third parties, given that doing so could jeopardize the informer's anonymity.
Reconciling Informer Privilege With Court Openness
Despite its endorsement of the procedure set out in Vancouver Sun, the Supreme Court nonetheless reiterated that "[o]pen court principle... is a pillar of our free and democratic society." Consequently, the Supreme Court stated that courts must protect informer privilege "while minimizing, as much as possible, any impairment of the open court principle." In this case, the Court of Appeal of Quebec erred in refusing to make public a version of the trial judgment that was redacted in a way that protected the Named Person's anonymity.
Moreover, the Supreme Court emphasized that "secret trials" that leave no trace except in the minds of those involved are not permissible in Canada as they are contrary to the rule of law. To better accommodate the open court principle while equally respecting the informer privilege, the Supreme Court held that courts protecting informer privilege may need to create a separate, parallel in camera proceeding distinct from the public proceeding in which the informer privilege is initially invoked. By preventing the parallel proceeding to be linked to the public one, information can be disclosed in the parallel proceeding without revealing the identity of the informer. The creation of a parallel proceeding makes it possible to disclose, at the minimum, the existence of the in camera hearing and of any decision rendered as a result.
Conclusion
According to the Supreme Court, the expression "secret trial" used by the Court of Appeal to describe the first instance in camera proceedings was "inaccurate" and "needlessly alarming". However, even though the Supreme Court stressed that "secret trials" do not exist in Canadian law, it nonetheless authorized proceedings in which everything is confidential as long as they appear on the docket or the hearing roll. This decision serves as a reminder that, while informer privilege is "virtually absolute", openness of the court is not.
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