“Phantom” trial: what we know about the other case in the country

Many people are in turmoil over the revelations of a “ghost” trial in Quebec. However, this is not the first time that judicial secrecy and freedom of the press have clashed in Canada.

• Read also: Supreme Court of Canada: bilingual Ontario judge wanted

• Read also: “Ghost” trial: Minister Jolin-Barrette asks to make the information public

For Guillaume Rousseau, full professor and director of the law and state policy programs at the Faculty of Law of the Université de Sherbrooke, “this whole story is worrying, because the public nature of the justice system is a fundamental principle in democracy”.

The previous case of interest to us took place in 2006, in British Columbia, as described by the Globe and Mail in October of that same year.

Touching on immigration and extradition issues and moving towards a level of secrecy similar to that of the Quebec case, it ended up before the Supreme Court in 2007 and made it possible to recall certain fundamental principles concerning the publicity of the proceedings. judicial.

The case in question

First referred to as “a named person against the Attorney General of Canada on behalf of the requesting state”, this secret proceeding involved a request by a “requesting state” for the extradition of a “named person”, accused of criminal activity in his country of origin.

Lawyers for both sides agreed the case should be tried in private, as the ‘person named’ was a former police informant who believed his life would be in danger if his identity were revealed.

The judge wondered if those fears meant the whole trial had to be held behind closed doors.

He first decided to inform the media of the trial, with regard to the principle of the publicity of legal proceedings, which governs the opening of the work of the courts to the general public.

He then decided to share many confidential details of the case with the news media lawyers, subject to a confidentiality undertaking, so that they could better discuss the case.

The appeal to the Supreme Court has been filed by both parties in the lawsuit against these two orders so that secrecy continues to be applied to the case.

Photo archives, QMI Agency

The Supreme Court decision

The Supreme Court, through this litigation, re-emphasized the principle of public hearings, in the judgment Designated person c. Vancouver Sun submitted on October 11, 2007 and available on the institution’s website.

After recalling that, while the publicity of the proceedings is of capital importance in the exercise of justice in a democratic society, it cannot be applied if it fundamentally undermines the criminal justice system, the Court explains that the judge must nevertheless take all possible measures to ensure that the public has the fullest access to the proceedings.

It should restrict the communication and publication of information only if this information could reveal the identity of the whistleblower. The most rigorous test possible must then be carried out.

The principle of open courts is guaranteed by the Canadian Charter of Rights and Freedoms and does not preclude informer privilege.

As the Court explained, the rule of informer privilege does not give the trial judge the discretion to order a publication ban, and therefore complete secrecy.

The idea of ​​secrecy, viewed in a discretionary and non-opposable manner, is considered unacceptable by the Court. Nevertheless, the Court allowed the parties’ appeal against the orders.

Without imposing secrecy, she asked the judge in British Columbia to choose the information to be released while respecting these two principles and the privileges at issue in the case.

The Quebec shadow trial: a drift of the judicial system?

In terms of case law, the operation adopted by the Quebec court is scandalous for legal practice here.

For the associate professor at the University of Sherbrooke Maxime St-Hilaire, “the publicity of the trials – which, of course, can know exceptions – has nevertheless been raised to the rank of constitutional principle, through the Charter in particular. It is also arguably part of the rule of law”.

For Mr. St-Hilaire, the question is therefore how the court was able to justify in a discretionary manner, with the cooperation of the parties, such restrictions on this advertising and its corollary of freedom of expression.

“Several judgments and decisions of the highest court in the land make advertising the principle and not the exception. The previous cases nevertheless followed a certain logical sequence between the wishes of the parties to secrecy and the judge’s work of reflection with regard to the opinions of the media covering these cases. How is it then that one can justify such secrecy? To the point of not even identifying the judge and the court?”


Leave a Comment