Quebec legal community dismayed by secret criminal trial

The French-language newspaper La Presse revealed that the secret trial dealt with an informant in an organized crime probe and that the charges were laid by federal prosecutors. In a statement expressing his “deep concern” over the circumstances of the case, Quebec Minister Justice Minister Simon Jolin-Barrette stated that the Quebec Director of Criminal and Penal Prosecutions was not involved.

The Public Prosecution Service of Canada (PPSC) said in a statement that it does not “initiate” prosecution in secret and “does not conduct secret trials, even in matters involving an informer.”

Quebec Superior Court Chief Justice Jacques Fournier told Radio-Canada that he was flabbergasted and does not believe that one of his judges presided over the trial. In Quebec, all criminal trials before Quebec Superior Court are heard before a jury, unless both defence and the Crown prosecutor consent to have a trial without jury, something that rarely occurs, according to criminal law experts.

Court of Quebec Chief Justice Lucie Rondeau too is in the dark. In fact, Chief Justice Rondeau filed a formal motion before the Quebec Appeal Court to be given access to the confidential case, asserting that the case raises important concerns that fall within her duties, reported La Presse (today). “I therefore ask the Court of Appeal, among other things, to obtain under seal the information that will enable me to carry out the responsibilities arising from my duties, either the complete file of the first instance or the relevant elements to trace it,” wrote Chief Justice Rondeau in a letter sent to all judges of the Court of Quebec on April 4^th.

According to prominent Montreal criminal lawyer Jean-Claude Hébert, Chief Justice Rondeau’s motion is “interesting” because if the Court of Appeal declares it moot, then all pressure will turn to Chief Justice Fournier.

But Hébert, like other legal experts, is calling for a series of probes to determine what took place and to hold the parties that took part in the case accountable. To begin with, the Quebec Judicial Council should launch an investigation to determine whether the trial judge acted within the norms of his profession, said Hébert. The Quebec and Ontario law societies should also investigate the lawyers involved in the case. “It’s a pyramidical case involving different bodies in different provinces so before all this is completed we have months and months to go,” said Hébert.

Quebec Justice Minister Jolin-Barrette instructed Justice Minister officials to apply before the Appeal Court for the release of some information that is currently redacted, such as the identity of the judge, the lawyers involved, and the orders issued in the case. But the investigation should go further, said Hébert and other criminal lawyers. “Is it possible that other follies like this one occurred in the past?” wondered Hébert. “We need to know, and this is where the Minister needs to have a complete picture from this case to be able to determine if there are other similar cases.”

The case has puzzled legal experts, beginning with Catherine Claveau, the bâtonnière of the Barreau du Québec. “We are all shocked that it was possible to hold a trial like this,” said Claveau. “It is essential that trials are public to keep the confidence of the public in the justice system. The lesson to be drawn from this case is that it must never happen again. This kind of trial should not take place in Quebec, in a free and democratic society.”

Denis Gallant, a former Deputy Attorney General at the Organised Crime Bureau with the Quebec Ministry of Justice, said it is “incomprehensible” that such a trial could be held. “It is stunning that lawyers, both defence and the Crown, consented to it,” said Gallant, who was the deputy chief prosecutor at the Charbonneau Commission that investigated corruption in Quebec’s construction industry. “That we don’t have a case number, that we don’t know the name of the judge, that we don’t know the names of the lawyers, I’ve never seen something like this.”

Quebec City criminal lawyer Julien Grégoire too is perplexed and “shocked” that legal parties participated in “this legal charade” ostensibly to ensure the “fundamental protection” of informer privilege. “While this protection is certainly important, it is also delineated and framed by relatively clear principles and guidance emanating, in particular, from the Supreme Court of Canada,” noted Grégoire.

In a heavily redacted 36-page decision in Personne désignée c. R., 2022 QCCA 406, the Quebec Court of Appeal held that the method used to protect the confidentiality of the police informant was exaggerated and contrary to the fundamental principles of the justice system. The Appeal Court ordered a file to be opened with the Court Registry, subject to an order to keep it under seal.

“The Court is of the opinion that if trials are to protect certain information disclosed in them, a procedure as secretive as the present one is absolutely contrary to modern criminal law and respectful of the constitutional rights not only of the accused, but also of the media, as well as incompatible with the values of a liberal democracy,” concluded the unsigned decision, originally issued on February 28^th but amended on March 23^rd, by Appeal Court Justices Marie-France Bich, Martin Vauclair and Patrick Healy.

The case deals with an individual who was charged and convicted of an unnamed offence, an offence the informant had revealed to police, after he became a police informant. At trial, the informant argued that the charge was an abuse of process, an argument that held no sway with the trial judge. But the Appeal Court overturned the lower court decision and stayed the conviction and legal proceedings.

Heeding guidance from a series of decisions by the Supreme Court of Canada, the Appeal Court reaffirmed the State’s obligation to inform and if ambiguities exist, it may benefit the informant. The Appeal Court also clarified the way to interpret contracts between informers and police, holding that it is based primarily on common law rather than the general rules of civil law contracts, noted Grégoire.

In this case, the appellant renounced the right to remain silent, the right to counsel, the right to a public trial and the right to make full answer and defence when he became a police informant through an informal and verbal contract, pointed out the Appeal Court. Moreover, the police never informed the appellant of the right to remain silent or suggested that he consult with a lawyer. Under the circumstances, it was “reasonable” for the informant to think that he could disclose the offence for which he was eventually charged because he had to be truthful under terms of the contract, because the investigation did not deal with him and because he believed that nothing could be held against him, said the Appeal Court. “The State cannot benefit from the ambiguities of its agreement with the informant by then using it against that informant,” held the Appeal Court. “The fact that charges were laid in the circumstances is appalling.”

Gallant believes that there was no need for the Crown to press charges against the appellant if it wanted to protect the identity of the informant or safeguard ongoing investigations being conducted by police. The choice to prosecute is a discretionary power, explained Gallant. “The Prosecutor General is never obliged to prosecute, and in cases dealing with informers it is always really touchy,” added Gallant. “In the fight against organised crime or against drugs, there are cases every day dealing with informants, and the courts are used to dealing with such cases. So I really don’t understand, even less so because as long as your investigation is going on, you can delay the charges. I just don’t get it.”

Besides, there already exists provisions, notably s. 486, of the Criminal Code, that allows the exclusion of members of the public from the court room for all or part of the proceedings, pointed out criminal lawyers. The Canada Evidence Act (Act) too can be used to prevent the disclosure of information, noted Gallant. Under s. 37 of the Act, a Minister of the Crown or other official may object to the disclosure of information before a court on the grounds of a specified public interest. “But s. 37 does not allow in my opinion for a so-called phantom trial that nobody knows exists,” said Gallant.

Moreover, in Quebec publication bans are automatically placed on the identity of sexual assault victims, young offenders and parties in family law cases, pointed out Claveau. “There are ways to protect the identity of informants,” said Claveau. Nevertheless, the Quebec legal society is offering “its full cooperation” to the Quebec Minister of Justice and the Chief Justices to put in place “clear mechanisms” to ensure that such a situation does not recur, added Claveau.

Criminal lawyers are also puzzled that the trial judge appears to have issued a ruling based on transcripts. That is a major flaw in the case as body language and a person’s behaviour are one of the ways that judges assess the credibility and reliability of witnesses, said Hébert.

Michel LeBrun, the former head of the criminal defense lawyer’s organization, Association québécoise des avocat(e)s de la défense (AQAAD), is not surprised by the discovery of a secret trial. The Ontario Court of Appeal decision in R. v. Rocha, 2018 ONCA 84, which held that the details of redacted information do not have to be communicated to defence, has led a slippery slope, asserts LeBrun. “Since Rocha, we have increasingly seen a move towards secrecy in order to ensure efficacy of investigations at the expense of full and answer defence,” said LeBrun. “This is, in my opinion, very dangerous. The fact that there are no checks and balances on police work has led to a number of abuses.”

LeBrun suggests that defence lawyers be appointed, as is the case in terrorist cases, to assist with the management of confidential information provided by informants. These defence lawyers could also act as the guardians of fundamental rights and freedoms of informers. “Abuses can occur when information is withheld from the public,” said LeBrun. “We must be vigilant.”