Allison Hanes: Secret trial poses a serious threat to Quebec democracy

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Every day in courtrooms across Quebec, countless hearings take place that are fully open to the public.

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Citizens may not be present at every criminal trial, civil lawsuit, injunction request, motion, bail hearing or arraignment. But they have the right to be, in all but rare circumstances.

Often the media serves as a proxy for Monsieur et Madame Tout-le-monde, reporting on high-profile cases or keeping a lookout for matters in the public interest. Many courthouses are also frequented by legal buffs — ordinary folks who attend proceedings out of personal interest. Anyone, whether an interested party or a curious observer, is allowed to sit in the public galleries.

Much of what happens each day slides under the radar, but all of it is duly documented, recorded, tracked and available to the public in keeping with the sacred principle of open courts. Transparency is one of the pillars of a modern justice system in a free, fair and democratic society.

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That’s why the discovery of a secret trial — of a secret defendant charged with a secret crime that took place in a secret jurisdiction somewhere in Quebec involving a judge, prosecutor and defense lawyer whose names remain secret — is not only alarming, but outrageous.

There were other anomalies, too. Witnesses were examined outside the courthouse while the presiding judge weighed their testimony based on written transcripts, in violation of just about every procedural and evidentiary norm. No file number was assigned, no records were kept, no trace even existed — until the defendant, an informant in another case who was charged despite being promised immunity, sought to overturn their conviction.

That’s when the Court of Appeal got wind of the matter and pulled back the curtain to shed light on this extraordinary obfuscation.

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“There is no trace of this trial. The manner chosen to proceed in this case was exaggerated and contrary to the fundamental principles governing our legal system. Such secretive procedure is contrary to modern criminal law, which is respectful of the constitutional rights of not only the accused, but also the media. It is also inconsistent with the values ​​of a liberal democracy,” the three-judge panel of Marie-France Bich, Martin Vauclair and Patrick Healy wrote in a decision March 23 that was made public, righting the first of many wrongs.

La Presse first reported on the phantom trial and has been leading the charge getting to the bottom of the mystery. The top editors of Quebec media outlets, including the Montreal Gazette, have since published an open letter decrying this unacceptable surreptitiousness. Opposition politicians are demanding answers.

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The revelations have been called everything from a “nuclear bomb” (Parti Québécois justice critic Véronique Hivon) to a “totalitarian wet dream” (La Presse columnist and 98.5 FM commentator Patrick Lagacé, once the target of espionage by Montreal police). This is not hyperbole.

This ghost case may not sound like a big deal — and was ostensibly done this way to protect the informant from harm — but it risks setting a dangerous precedent that could shake the very foundations of our democracy.

This is something straight out of Kafka, whose novel The Trial, about a man who must defend himself against unknown charges, is a chilling parable about how the denial of justice presages the slide into dictatorship. Closed proceedings happen in authoritarian regimes. This is unthinkable in Quebec and Canada, opening the door to abuses of procedure, power and rights.

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With journalists digging deeper into this buried case, La Presse revealed Wednesday that the secret trial was of an RCMP informant in an organized crime investigation and that the charges were brought by federal prosecutors. So it now seems this affair has implications beyond Quebec.

Whether provincial or federal, the subterfuge must be accounted for—in public.

Some answers may be forthcoming. In a statement Wednesday, Quebec Justice Minister Simon Jolin-Barrette professed himself greatly concerned by the level of confidentiality uncloaked by the appeal court. He has mandated Justice Ministry officials to try to have more details about the uncensored case, such as the names of the judge and lawyers involved.

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It’s not like there aren’t legal mechanisms readily available to stop sensitive information from circulating. Publication bans are automatically placed on the identity of sexual assault victims, young offenders and parties in family law cases. They can also be requested on evidence at the preliminary stage or on motions to exclude evidence at trial. Judges can seal records and hold hearings in camera. But this still happens in open court, where the pros and cons can be debated — and where the media, representing the public interest, has an opportunity to challenge such measures.

Organized crime, terrorism, national security and sexual assault cases have all been tried under existing rules, even if it took some juggling. It’s difficult to imagine what particularities would justify the total abandonment of the most basic and sacrosanct legal values.

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Quebec and Canadian courts must resist the urge to erect stronger barriers to openness, even amid new challenges like the Wild West of social media or a push to show more sensitivity to victims. Sacrificing transparency is a slippery slope, and threatens to backfire by eroding trust in the justice system.

There is an old saying that justice must be seen to be done. Normally that means it must be perceived by the average person to have prevailed. But this time, the maxim’s message can be taken more literally.

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