Allison Hanes: How can Quebec ensure that no more secret trials take place?

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Months after warning about the secret trial of a police informant, the Quebec Court of Appeals ruled that it cannot reveal anything more about the matter.

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The case, which first came to light when the Court of Appeals overturned the informant’s conviction, caused a stir among the judiciary, the legal profession, the political class, the media and the public due to the unprecedented circumstances in which was carried out.

Not only the name of the accused was kept confidential, but also the nature of the crime, the jurisdiction in which it occurred, the police force that treated him, the lawyers involved and the judge who heard the case. More disturbing, no file number was ever assigned. The witnesses were questioned outside the courthouse and testified by transcript. It seemed to violate every rule of procedure, every principle of fundamental justice, the very foundation of democracy, and the three judges who uncovered the existence of the case seemed equally concerned about what had happened.

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But after the Quebec attorney general, the chief justice of the Quebec Supreme Court and the press (including the Montreal Gazette) requested more information at a partially closed-door hearing in June, the Court of Appeals judges said they were As far as they could go with their earlier decision, they overturned the verdict and denounced the “unacceptable” level of secrecy.

So it’s case closed. Nothing to see here, friends. It’s time to move on now.

Justices Marie-France Bich, Martin Vauclair, and Patrick Healy found that protecting an informant’s identity is so ironclad that it takes precedence even over the principle of open and accessible courts, one of the cornerstones of the justice system.

They say that the Supreme Court of Canada has ruled clearly and consistently on the importance of this privilege, so that any debate on these rights “is now closed.” And given the details of this case, not to mention the notoriety it has since gained, releasing more details, no matter how seemingly innocuous, risks taking out the whistleblower.

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That is something that the media and the general public can certainly understand. There was little expectation that the court would reveal the informant’s name, the crime, or even the city where it all happened for fear of endangering the person’s safety.

But the refusal to name the judge, prosecutors, defense attorneys or police is a bit harder to swallow.

“In principle, these details are public and the Court, it must be said, is not ignoring this,” the justices said, acknowledging that continuing to grant them anonymity in the previous decision “shocked” many. Media lawyers argued that such censorship was “exaggerated and unwarranted” and that basic information “is not likely, on its face, to reveal the identity of the police informant involved.”

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But in the end, the original sin of accusing the whistleblower tied the hands of the courts in maintaining the cone of silence.

“In effect, it was the decision to bring charges against the person designated in the first place as the source of the problem, which resulted in a situation where it is now impossible to get out of anything other than preserving the secrecy of ordinary public information.” . Bich, Valcourt, and Healy wrote. “If these details cannot be disclosed in the specific case, it is because they fall inexorably within the scope of the privilege of police informants”, considered the Court of Appeals.

Once asked to consider the status of the informant himself, the initial judge had no choice but to do things behind closed doors, they said. As to why there wasn’t a file number or why the informant was found guilty if charging the person was so questionable, that remains opaque. The final paragraphs of the decision discuss what the police, prosecutors and trial judge could have done differently. But these potentially useful insights are largely hidden.

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The Court of Appeals goes to great lengths to offer assurances that nothing wrong has happened in an extraordinary affair that has drawn reproaches from the Quebec Minister of Justice, Simon Jolin-Barrette, and Supreme Court of Canada Chief Justice Richard Wagner – to name a few.

“In writing all of this, the Court is in no way suggesting that anyone on this record acted in bad faith, through negligence, or with disregard for the principle of open hearing. … In examining the file, they acted with great honesty. Even if mistakes were made, the substitution of the confidentiality imperative attached to the whistleblower privilege does not constitute a demonstration of an undue desire to hide things from the public,” the judges said.

Any claim that the trial judge was trying to hide his identity is nothing more than a “gratuitous assumption” intended to “discredit the justice system,” they added.

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We will have to take his word for it. And so will Quebec Chief Justice Lucie Rondeau for that matter. His request for exclusive access to additional details for administrative purposes was also denied, and the reasons were redacted in the public version of the judgement.

It’s hard to accept that this was all just a tempest in a teapot when so many serious questions about excessive subterfuge were being raised, including by the Court of Appeals itself.

The three judges may have found themselves in a “difficult position” in the face of needing to denounce the phantom trial while protecting the identity of the informant. And perhaps they weren’t expecting such a pushback from their earlier heavily censored decision.

But all the consternation speaks to the seriousness of the matter. What can we do so that this does not happen again? What lessons can we, and the police, prosecutors, lawyers, and judges, draw to avoid making the same mistakes in the future? There are no guarantees since this whole thing remains a paradox, wrapped in an enigma.

The idea of ​​a secret trial in Quebec was unthinkable under any circumstances for almost all participants in the justice system, not to mention the media and the general public. We don’t quite know yet, but at least we have a better idea.

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