The Supreme Court of Canada will hear an appeal from a slew of media organizations challenging confidentiality orders issued in a secret criminal trial, with no paper trail, that was held in Quebec.
The secret trial only came to light after the defendant chose to appeal the verdict before the Quebec Court of Appeal. The trial did not have a case number and was never filed in the province’s judicial archives. As disturbingly, the names of the defence lawyer, the Crown prosecutor and the judge were excluded from the public record as were the offence, date and location of where the trial took place. Moreover, witnesses were interviewed out of court, and the parties asked the judge to decide the case based on transcripts.
In July 2022, the Quebec Court of Appeal held in Re Personne désignée c. R., 2022 QCCA 984 that the right of informants to remain anonymous supplants the well-entrenched principle of open court proceedings.
 In short, informer privilege, a generic and public interest privilege, is absolute and overriding, and its application must be ensured by the courts, which have no discretion in the matter and which must, like the police and the public prosecutor, protect the informer’s identity and not reveal any information, even the most minute.
But in briefs presented to the highest court, media argued that this case is of “great concern for public justice” which could be repeated across the country without the SCC’s intervention.
“Inadequate protection of the publicity of court proceedings in favour of an overly broad interpretation of police informer privilege will undoubtedly lead to the possibility of limiting media access to judicial proceedings and allow, as in this case, a trial file to be conducted without anyone (except the parties involved) knowing about its existence,” said the memorandum penned by Christian Leblanc and Patricia Hénault of Fasken Martineau DuMoulin LLP. “It is the public as a whole that will ultimately pay the price, since this will inevitably result in a deficit of available information. It is the public’s right to information that will be directly affected.”
The Attorney General of Québec, who also challenged the confidentiality orders at the request of Justice Minister Simon Jolin-Barette, also had his application for leave to appeal granted as did Court of Quebec Chief Justice Lucie Rondeau, recognized as an intervener in the case by the Supreme Court.
The Attorney General of Quebec argued that the Appeal Court erred in refusing to make some parts of the its record public. The Appeal Court should have followed guidance issued by the SCC in Named Person v. Vancouver Sun, 2007 SCC 43 that held that all information that is not likely to identify a police informer must be made public, argues the Attorney General of Quebec.
“Since the Quebec Court of Appeal, on its own initiative and with the benefit of submissions from the respondents within the circle of privilege, was able to sort out what information could be made public and what could not, the Court erred in subsequently refusing to make certain parts of its record public on the basis that the exercise “appears impractical,” asserts the Attorney General of Quebec.
Chief Justice Rondeau maintains that it is important for the SCC to “render a decision, both at the leave to appeal stage and on the merits, on an accurate factual basis, which neither the Attorney General of Quebec nor the media representatives are in a position to provide, considering that they are deprived of it because of police informer privilege.”